about a central michigan university professor and her husband we assert that they were both retaliated against after her husband promoted a no confidence vote against the university president and provost district court's decision was a order granting the defendant's motion for summary judgment on the basis of the district court's decision was well first of all the district court acknowledged that the no confidence vote was a protected activity for both christopher benison and for his wife kathleen venice and the district court acknowledged that both had suffered adverse actions dr benison was denied a promotional pay increase and was sued for the amount of compensation that she had received during a sabbatical and christopher benison had a hold placed on his academic transcript the court found that there was insufficient evidence of a causal connection between the adverse action and the protected conduct and that's where we believe that the court that was the court correct in terms of the decision that it was an adverse action to deny her a pay increase when she resigned before the pain crease all at the department level it was appealed pursuant to the relevant procedure as the final decision wasn't made before she resigned because the final decision as i understand it had to be made at the very top level of the university and it was still in the appeal process when she resigned it's my understanding you're correct the provost makes the final decision and she had appealed the decision to the provost provost had not yet made a decision and at the time that she resigned her employment we learned in through discovery that the provost deliberately delayed making a decision with the hope that she would  innocent reasons decide to delay making a decision if the issue goes away i worked with a guy once who used to have about one hundred telephone slips he was the chief of staff of the attorney general he had about one hundred telephone slips in his pocket and i said jim what are you going to ever return those phone calls and suggest if i wait long enough they'll all go away and that seems like just a natural thing to do why isn't that what was going on here i just don't know why that would be i think it's animist based on the e mail exchange it is that took place so this wasn't a decision where the judge or excuse me where the provost just said that he was too busy to get to the matter he first of all learned that kathleen madison had put her house on the market which she said that's good news and we have a professor here of the steam credentials and it's our contention that a reasonable and rational provost would want to retain a professor like that and not acknowledge or reference the fact that she might be leaving the university is good news we also know that even though the university is saying that these decisions take a long time and the provost might not get to it for a while before the decision was made by my client to resign her employment there was already an e mail traffic between the provost and the dean where they were trying to support the decision that had been made at the dean's level that she did not have sufficient service and so we think that refutes the argument that this was just a much salary increase was seven thousand dollars a year here so it's very clear your honor from the case law that the denial of a promotion or promotional pay increase constitutes an adverse action so we we diverted you from you were going to go into causation and that's where the district court said you failed correct your honor and our position is that the district court drew adverse inferences to the point of drew inferences in favor of the defendant with regard to a number of factual issues one of which is that dr benison was told flat out by in the or for one of the department members that he was going to teach her lesson by denying her promotional pay increase for the very reason that her husband promoted the no confidence vote we also know that dr benison was the first and only professor to be denied a promotional pay increase based upon service alone we know that to deny the promotion the department and the dean relied upon a lack of service to the department which is the wrong standard according to the collective bargaining agreement and the other information that was to guide that decision it was a service to the profession and service to the university there were very limited requirements in terms of service to the department such as participating in department meetings voluntary for various committees and the defendant's appear to acknowledge that she met those specific requirements that were set forth  the policies and in the collective bargaining agreement we also rely upon the provost deliberate delay in reviewing the appeal which we've talked about where relying upon the provost good news e mail when he learned that dr benison had put her house on the market we're relying upon ex parte communications that took place between the dean and the provost regarding the appeal so the way that this appeal process is supposed to work is that there is written paperwork quite extensive written paperwork that is submitted both at the department level and then at the appeal level what is not supposed to happen is the dean contacting people in department forwarding that information to the provost without the knowledge of the professor so you think you've been focusing on the pay increase issue if if we were not to believe that that was an adverse action because of the timing of her resignation do you have cards ation evidence with respect to your other adverse action we do your honor so the other adverse actions that we reference the first one  is the decision to sue dr benison in the state court for the failure to repay the sums that she received during her sabbatical period she was the first professor  sabbatical has ever paid back the sabbatical pay and we have a number of cases that we cite in our brief that we think are similar circumstances one is surprisingly similar  where the conclusion was made that because the professor worked hard during the sabbatical period they were going to require her to repay the money that she had earned during the sabbatical period but i think the more significant evidence is what they sued her for so wasn't simply the amount of salary that she received which we think would have been within the terms of the language of the collective bargaining agreement the policy they also sued her for her the value of her benefits but but more surprisingly they sued her for the value and remission that her husband received so the way that this works and it's fairly common in public universities is that professors are receive not only the right to take classes themselves with their family members can take classes at the university without any allegation of pay for tuition so that's what christopher benison was doing he was taking classes and he didn't have to pay any tuitions for that was while she was on sabbatical while she was on sabbatical in the collective bargaining agreement says that you are entitled to all of your regular benefits during a sabbatical period well after dr benison laughed and they decided to sue her first of all there even if there was an e mail exchange about let's just sue her for the amount of money we paid and then there are some more e mail traffic that says well why don't we sue her for the amount of the value of her benefits like her health insurance so that was entered on and then when the lawsuit was filed they also added another forty two or forty eight hundred dollars now for any money that she had received which is the language in the collective bargaining agreement they sued her for what they could have received had christopher benison been a regular student and paid tuition well that just isn't supported by any language in any of the documents whatsoever and we think it is directly relevant to the animists issue and we also think it's an adverse action that was taken against dr medicine because she is the one that was sued to give me a best case for the idea that a non binding recommendation is an adverse action what's the case if i read it  k fair enough you know i i don't think that that issue has been addressed in either brief your honor and it's not something that i focused on ok well now's your  time i don't have a case for you it seems counterintuitive to me that in a process with you know many steps along the way you know a non binding recommendation not finally acted upon by the decision maker is itself the adverse action i think that that would be a better argument if we didn't have the e mail traffic that shows what would have happened to me i mean we're your honor that traffic enough traffic is not one way right i mean you have her own e mail she decided to move to morgantown her a we plan to give a firm offer next week that's mesa right which is after the appeal was made t two days after two days after yeah you know you i would look at that and say she's a she's basically a managing this well there is a body of law are there is a body of law out there your honor that says that a party does not have to  pursue something if it's going to be futile in this case we know it would be futile based on the e mail traffic that says from the university standpoint we're glad that she has put her well to that extent your honor we would rely upon the other evidence in the other aspects of retaliation that took place in this case is there a qualified immunity question if we were to find that you had  d adverse action in kind zation would there still be a qualified immunity question and these a v i'm thinking of the sabbatical reimbursement issue because the university is intitled arguably under the c b a to recoup the cost of the sabbatical if someone doesn't return to the university they're entitled to recoup the salary and compensation right right so your claim is that they treated her differently in retaliation for her and her husband's protected conduct that you're in i don't believe that there's any issue with regard to qualified immunity because if they did in fact retaliate against her in some fashion because of her husband's no confidence vote that's a clearly established constitutional violation even if they could have tried to recoup the salary absent any protected conduct from a regular person who hasn't done any protected kind that they can recoup the salary if they don't come back yes so what case would say that there is no qualified immunity for an official who decides to file the suit that they could file well i think the qualified immunity issue tass whether or not there has been a violation of a clear constitutional right so yes but so is it clearly established that you cannot bring a suit that you would otherwise legally be able to bring as a state official to recoup the salary if you have a bad  motive i think that the issue is whether or not they had a bad motive and took some sort of a talent torrie action i don't think you can parse i think that's the problem of the district court judge got into and in the defendant's position that you can parse all this out and try to avoid the fact that there was this no confidence vote there was an action that was taken very soon thereafter to deny the promotional pay increase there was this e mail traffic indicating that they thought that that was you know a great idea that dr benison was going to leave even though she was a very qualified professor would have all of this other evidence if there's a motive if there if they retaliated against her because of the no confidence vote that's clearly illegal by i mean you well established as a slow causation problem isn't it i mean i think the causation issue is a different you do something you can't say you're not allowed to do it because there's a suspicion that you had a bad motive i mean the problem is the drafting of the c b s that's the cause so what i'm wondering is is there a case that says you can see in you ms bennis and can sue even though somebody who didn't engage in protected conduct could be sued by the university to recoup the salary benefit in other words saying that people in this protected conduct area people in the university shoes are limited in their use of the c b i b c this is a unique fact hatter but i'm wondering if there are more generalized case raised for the first time i feel thank you very much thank you morning your honour's brian kaufman on behalf of the apple leaves if i could start just for a moment and for more with with your question that you left off line we did point to some case law that if there is merit to the lawsuit that would that would say that state officials can retaliate as lawyer so that even though normally they wouldn't do professors to recoup sabbatical pay if the professor doesn't return because they dislike this professor because of her protected speech they can on the supreme court case of johnson's restaurant an hour before sixty one us seven thirty one pages seven forty seven forty nine this nine hundred thirty case and then there's also could be in fact totally retaliating against a professor for her protected speech if they have a provision in the c b a that says we can recoup you sabbatical pay if you don't return and yet they hypothetically never have ever tried to recoup anybody else's sabbatical pay when they don't return and there are obvious cases of that happening  understand and i would start by saying that in this particular case we don't have a university i was speaking of i mean honestly i understand where you're going and i would say that the case that i decided to you is a district court case from this because the way i'm portraying it you would think that people would want to say that someone such as ms bennis in the hypo would be able to bring an action if hypothetically it is this evil motive and the university has never acted in that way before i think that the problem would be that if the lawsuit is meritorious then there would be some kind of in my hypo there is no reason because the university never ever has tried to recoup sabbatical pay even though hypothetically there were twenty five professors who didn't return after their sabbaticals and all of a sudden they decide in this one case where someone hypothetically has spoken out and said the president of the university is a jerk and it's obvious that the reason why they're trying to recoup per dollar counts and they have brought this was the first action that they brought in this case the senior is running as a professor but this is an extraordinarily rare event where a professor would not return for s refuse to pay the compensation so what happened to going fine fine fine occasions in the last ten or fifteen years was there evidence that when the record that other professors actually paid back their sabbatical money the two professors who had laughed while the provost shapiro was provost but qualified for the exception under the medical exception there's a specific thousand dollars please pay that money back he said you know thank you and south korea and an economic decision was made not to bring suit against then individual give me the quick summary you said there were five  little trouble understanding i don't care about professors i don't care about the provost ok i don't care about that isin ok i want to know what happened in the last ten to fifteen years every time someone didn't return from sabbatical is there a single time they paid the money back not paid money back but the money was demanded from the professor who went to korea but they never got it back they did not get it back no they did so they asked for one time maybe multiple times i don't know how many times and for bank i don't know honey from one person they asked from a from only one person right ok and they just and they didn't because that person was abroad that's your that's the idea that some how somewhere i got the idea that there was this professor that was discussed on page five thirty three they took out the name of the professor but and that they that they for gave that professor from waiver is required in that situation it's now up to discredit but do we was there a factual issue on whether or not she was excused because of medical reasons that this this other person was there a factual a summary judgment right so we take all facts in the light most favorable to your opponent ok so if everybody green that that person that other professors sabbatical pay was excused from being returned because of medical reasons then we would say that's a different case and that would support you but if your opponent has some evidence that this person didn't actually have i'm sorry  think your question i mean i didn't see anything that my client and that my opponent said that this lady did not hand to medical issues we supported the evidence that we had some letters and some e mails from her that documented some of the health concerns that he was having and there was the decision by the previous provost that kid said assign the clause in the thank the association agreement and then she would be excused in that case but what's your best case for the point that that tell me quickly what happened so this was a case where there was basically a negative performance review they didn't impact the employees you know her her pay or her  out of our core which was ok pretty tough on pretty broadly defining adverse action and basically saying anything that might deter a reasonable person from acting suffices and i am pretty confident that today dozens of e mails to her colleagues saying that it was due to her disagreement with sen morgan the department here regarding we've the sas and so again never mentioned it but if it happened i understand you seem to be making an argument that even if the vote was binding there still was no connection to these other disputes and problems not exactly the point you make that there is no connection between what the defendants did and what the department was and there's no evidence of that in the record because dean davis and his associates first met with proper documents and advocated a colleague of hers from the biology department they up a recommendation that the dean not recommend her for the raise so he had better yet the department recommendation and he made its own recommendation to the provost and then again she resigned  me there's a whole separate contention that this is also a con constructed district i mean you can have something more minor more broadly interpreted to be an amber sanction but does it rise to a level constructed district now getting a raise that the professor can apply for it in the following year and seven thousand dollars is constructed discharge does that make the conditions of employment so intolerable that a reasonable person couldn't work there any longer you know i would suggest not th like like the first return to this issue about what happened to the other professors on sabbatical and so this is addressed in my primary brief pages at page twenty two  but i indicate evidence of the record indicating that professor shapiro approved the waiver of any requirement to pay back as a better call because of a professor's long distance marriage and then he also did not pursue a professor who resigned to accept a position at another university to solve my family problem quote unquote so i do believe that there are other cases out there that are similar in the sense that they didn't involve any sort of overriding medical issue and then there's another example that my brief where i reference that a professor wasn't pursued because all of the work that she had done for the university during her sabbatical with regard to the other issue that we've been talking about which is does she have to pursue this appeal up through the level of the provost in order to make a claim although i haven't cited any cases on this in my brief if it would benefit the core i would like to submit just a short supplemental brief that addresses this issue in a situation that i think is most analogous which is in the context of a  union requirement that a union member exhaust administrative remedies with their union before they file a section three a one case in court the courts have acknowledged that that exhaustion requirement is not necessary if it is going to be a futility and i think those are the circumstances here we certainly know that now and in hindsight but i also don't believe that there is any evidence in the record of the provost ever reversing a decision that's made by a dean with regard to one of these promotional pay increases or or or other issues in the last thing that that i want to leave with leave you with is that in addition to the other retaliatory action that we've been talking about there was a hole that was placed on christopher benefit and that since transcript what that means is that he is not allowed to continue to pursue the completion of his degree as a consequence of that whole being placed on the transcript so they could have just said you know we're going after dr bennis and for the payment of this to wish and in state court and ended it there but instead they took this retaliatory and action against christopher benison himself and then has continued through today and he's now in west virginia with professor bennett's and cannot continue with his studies unless that hole in his transcript is removed and there is nothing in the collective bargaining agreement that says that the university is entitled to take that sort of action thank you thank you both for the argument the case will be submitted with