st tenured professor ever in voluntarily terminated at the university of oregon for any reason and at the time of his termination dr paper was a full professor he was the only native american full professor fully tenured professor at the u of o and after he was accused of sexual harassment with no prior record of discipline and no prior complaints documented in his personnel file he was terminated without ever seeing any of the evidence against him not seeing any written allegations against him and not being told he was going to be terminated until one working day before he was terminated and because the university has a public body this case raises issues of both procedural and substantive due process and st a member retaliation and in addition because there were similarly situated tenured professors who were not terminated it raises issues of gender and race discrimination unless the court has a preference i will i will start with the procedural due process argument on summary judgment the district court did find that people had raised significant material issues of fact sufficient to go to a jury on procedural due process but found that provided the defendants with qualified immunity finding that the applicable law was not clearly established and that was in error the court itself cited a significant amount of prior precedent which supported the district court's finding that there was sufficient evidence of insufficient hear your client would have gotten that had the union gone forward with the arbitration i thought in that context or cases or that cases particular about a mile from the supreme court suggested that you had you could have a pretty informal pre term anation process oral notification of the allegations and simply an opportunity to respond and it seemed like your client did was afforded that amount well i think given the unusual situation we're in with the union issue and maybe i'll just jump to that for a nd it's a question of st impression in this circuit whether unionization of a public university can deprive a tenured professor  of the significant due process and property interests that they have or should they diminish because here and i recognize that in armstrong this court held in one thousand nine hundred and two that in general public time he was hired he was he obtained very significant due process rights then the university unionized in two thousand and thirteen and so the argument that universities making is because of of under the rubric of qualified immunity and you yourself said this is kind of an issue of st impression and it seems to me what you would need to to provide to us if we were going to overrule the district court on this point is some kind of clearly established law that said in this set of circumstances you do something different from what you did and i just don't see that that's why i started out by saying you know if you look at the existing landscape of flaw i could see how the folks in the defendant's position would say well he's got this backend procedure we'll  before armstrong my argument is that those cases clearly establish that a tenured professor has significant due process rights that cannot be eroded and armstrong can't be read to have eroded that clearly established right and this is the board of education versus lenoir linwood unified school district there's one it's similar to what kind of situation we face here and even in brewster they say the law regarding procedural due process claims can rarely be considered clearly established at least in the absence of closely corresponding factual and legal precedent so i tried to come up with some case that was clearly on all fours with this case and i couldn't come up with one well i don't think three states says it has to be on all fours that well it says closely corresponding factual and legal precedent correct so that says you know if you're going to be in the due process area we're not going to have this be something where we're going to have clearly established law so as judge watford as tried to question you if you've got something where they do generally what they're supposed to it's beginning but they come forth with all this in stuff at the end and there's no clearly corresponding factual and legal precedent and how can i suggest that the re ordered title to qualified immunity a couple responses i don't think they came in with any additional process at the end what's being but we can sue for what was clearly established prior to the armstrong decision which is that under slow chow or a tenured professor and this is similar facts that there's a ten professor who's being terminated and they have certain significant procedural due process rights and when you combine that with the mccarthy era supreme court case law regarding the right to cross examine witnesses when you're a public employee who's being threatened with terminations clearly there's that was clearly established prior i've got to come up with three or four different ones which are not closely corresponding factual and legal precedent and i've got to apply it here and say no they made a problem on qualified immunity well procedural due process the slow cherif case is on point because it involves tenured professor and well and so you do have to say the lynwood unified school district is also about tenured faculty wouldn't you well but it that they weren't addressing the issue that's before this court which is why i understand it's not the same issue i'm just trying to get what the law says i have to do here well i think that i'll take your answer i just don't want your vows because i think that's a problem well i think cases like from the supreme court in the mccarthy era set a floor for all public employees here we have a tenured professor who's at the apex of rights where public employee i can't think of anybody who's a public employee who has more rights arguably allegedly than a tenured professor and if if this court allowed was a chipping away of what was clearly established in slow challenger and in the mccarthy era cases just say oh now that you got unionized after you were employed you've lost some rights that that cannot stand and that is not what was addressed in armstrong and you know here we have the  circuit in the light of the me two era saying that even students at universities have the right to cross examine and they made that decision based on the mccarthy era case law and said that you know it it's clearly established in the th circuit based on supreme court case for student how could it not be clearly established that if a tenured professor has the right to that sort of process even if cross examination were not required dr people was never given a meaningful notice of the allegations nor a meaningful opportunity to respond as we fully briefed in the briefs and well just we had another presentation let's not go to hear it call it what you want i we wrote down hearing only because that's what it seemed to me and he could have presented additional evidence very presented nothing he was told that the january meeting you're being it one working day from now he was not given an opportunity to to review any evidence he was not given actual full notice of what was the charges were at any time the investigation was biased from the beginning and prejudiced  him as we explained in the briefs but he was given an opportunity at after is informed he would be terminated he was given an opportunity to respond correct he was told he could submit a response in  writing at the at the november court sorry december meeting he was told yes you have the right to see the allegations in writing will give them to you the meeting ended they then got back to him and said no we're not giving you the allegations in writing he never saw any evidence against him he had no meaningful opportunity to really i thought he did see there was a document that was handed to him that included why he was being terminated said it was for unwelcome touching of students back but and underwear unwelcome kissing of the student on the hand she can forehead inappropriate comments of a sexual nature to a student including inquiring whether the student was in a relationship and remarking on the student's appearance after having her stand in front of a mirror was that not given to him it certainly wasn't given to him at the december meeting it was given a january th which was not a hearing it was a statement that you're being committed on tuesday which with the day after martin luther king  day he was told this on a friday so if he was good and i don't remember him being given any document tell after he was terminated but if he was no he was he was told he would be terminated effective january st name is and then he and he was given this information and he was told he had an opportunity to respond no later than january th so my question is did he respond to that i use you suggested they had no basis to even understand what was going on here i don't know what was said in that in that in the face to face meetings but we have at least a written record that he was informed what the findings were on january th the friday before the monday the tuesday after the h it but he was told he could respond by what you're saying he didn't need to spend martin luther king holiday responding to these claims of sexual harassment these are pretty serious claims it seems to me certainly told he had i mean doesn't seem like this is did he deny it did you write a letter i mean if i if i was accused of this i would have and i was given an opportunity responded would have written a letter and said i didn't do it i don't see that in the record he was continuously denying what was being he was being accused of which he had up till that they've been told verbally and the courts have been clear that for a meaningful opportunity to respond there's a timing factor which is there was one case that said three days three working days was not sufficient  and this was one working day and there was no prior notice to the entire faculty that as tenured professors that one allegation of sexual harassment could lead to immediate termination while we back up this was not the st allegation of sexual harassment the st documented allegation there is no allegation in his personnel file he was never told he was being disciplined prior to that there was not only a right but let's be clear you may be right sixty four dollars and that occurred on december th two thousand and fourteen and what's in the record under c r sixty four dollars are handwritten notes and then a summarized version of those notes created by plaintiff's union representative who attended that meeting with plaintiffs when he was meeting with university representatives the reason for that meeting was actually part of the investigation where the university was meeting with plaintiffs and his union representative and walking through the allegations that were made by the female student and getting his version of events so those notes are very helpful i think in identifying what was said during that meeting and getting a good idea of the detail in which the university went through all of the allegations raised by female student the nd thing i'd like to go to is agreeing with the court's comments that brewster does control in this case related to qualified immunity plaintiff has not provided any other cases that closely correspond to the facts here what i'd like to do is just quickly walk through the matthews factors that do apply here to highlight the fact st of all that this is a fairly unique case there are a lot of robust or flexible factors going on that are specific to the university that make it very difficult in fact  closely corresponding facts so the st factor is the burden on the employee which we can all agree is significant when you terminate an employee it does weigh in favor of procedural safeguards but the rd factor which relates to the university's interest this is actually very important in this case it includes consideration of the university's function and its physical and administrative burdens so here what you have is the university gets a complaint from a st term freshman female that she has been victimized by a faculty a tenured faculty member she's had is subject herself to unwanted sexual contact so what the university has university does is respond to that obviously one of the highest priorities for the university is student safety and welfare and also providing people access to their students the university is required to comply with the requirements under title nine here plaintiff's conduct interfered with the student's right to equal access it's undisputed in the record that this female student did change her of course of education just wondered if you could could speak to that sure there's a couple of points to that st of all with the evidence in the record is that the plaintiff plaintiff's union representative compared her interactions with the h r folks related to this complaint as to her interactions with other unions members who were being disciplined or being investigated and harassed statement was they actually treated him the same so keep in mind here for purposes that at least for the race and gender discrimination there needs to be some discriminatory animus but as to the due process piece i was speaking just trying to give you presented a very sort of benign summary of the university had this interest in getting to the bottom of things and wanted to conduct of thorough and fair investigation i'm just saying be sure to find more of these are something that was something that suggested that they had already prejudged the outcome of what this investigation was supposed to be that's all i was twenty very tough so in responding to your question under clemency airport authority what that case does that is an employ case and it has a pre term a nation post germination evaluation and what it decides is that if there is a robust post germination process available then the unbiased or impartiality on the preacherman nation process is not nearly as important and it's because again back to the check and balance under loudermilk when you have the robust post germination process available to you the preacherman nation is more of a check and immediate check rather than the entire due process piece all at once and because you have that t step process and the post terminations and it particularly here because under the collective bargaining agreement the way the parties were to select their arbitrator it was based off of a mutual selection of arbitrators so that an outside party it's not even an internal panel of university there's an absolute opportunity during the post terminations process to have an a biased arbitrator available  he claims he's not able to pursue the ark appreciate his choice he says he must show a defamatory statement he must show affected his future employment opportunities we're on summary judgment his declaration says he works in a specialized field he's impossible for him to find another job that is chosen field is a professor he has not applied for jobs and is cheap field because no jobs are available he had grants when he lost them all he had speaking assignments he lost them all he had a position as an external value waiter but now has one in that field now why does that not enough to at least overcome summary judgment well st i'll start with qualified immunity and then i can go back to the substantive claim but the qualified immunity the reason why the individual defendants are entitled to that is because it's different parties and in fact the person who publicized or didn't publicize it the person who released the police report which was then subsequently publicized via a newspaper article that individual that released the police report was university employee who has not been named in this case and was doing so is pursuant to a public records request so as to the stigma plus right off the bat because we don't have the same actors aligned all of the individual defenders would be entitled t qualified immunity but then you go further and you talk about ken she has plaintive proven the merits of the subject to a process claim no he hasn't because under inquest where that situation the also an individual who is employed in a very specialized area she testified that she had applied for over two hundred jobs and couldn't get a position and what the court found was there's no causal link she couldn't prove the causal link between the stigmatize behavior and the fact she couldn't find a job same analysis here even if there was stigmatizing which of course we do not concede but even if there was he has the burden to prove in his prime official case that somehow the universe the individual defendants behavior cause not get a job and he hasn't available for him to apply to so we don't know the record has no information as to why there are no jobs he could apply for for example he hasn't said that he's not qualified for jobs that are available that there we don't the record has no information and plaintiff situation here has to come forward and say i applied for this specific job and they told me the reason i didn't get it was because they had heard from the defendants wednesday there needs to be some evidence in the record of causation and i think in quits goes through that and says that the mere fact you have step one and step three you need to have some causal link in between well you're all you're saying is not a cure is a government blacklist that's and that's all you can have is that what you're saying no i think that's the standard the courts have stated that it's not merely a significant that even if there was a c even on summary judgment the only way to survive summary judgment is that if the if the university of oregon blacklisted this guy well there needs to be something similar to that because as inquest goes through this the mere fact that you've been stigmatized is not sufficient instead the employee must show that the stigmatizing actions make it virtually impossible for the employee to find new employment isn't is chosen field all that's why i gave you the declaration it seems to me that's trying to trying to set that up pretty much just exactly where you're going well i think he says it's impossible to find another job in his jewels field he's not applied for jobs it is field because there's no jobs available he has grants he's lost them he had speaking individuals he lost them he had a position as an external lot of her and that's the only thing you can do now i respectfully disagree that there's information in the record but i do come back to the fact that the parties the individual defendants would still be entitled to qualified immunity and the other piece of that is remember there's three individual defendants and there's nothing in the record to show that any of the individual defendants had anything to do with the release of the police report and there's only one individual defendant that made the decision to terminate his employment so that's the other thing is keeping in mind we have multiple parties in play here and each of their liabilities need to be evaluated and if we go to race and gender claims it seems to me using mcdonnell douglas no but no one disputes that he belongs to the protected class no one disputes he was performing according to the employer's legitimate yes i agree that we're talking about something else and then we've got the comparisons to can be drawn seems to me they may not be exact good comparisons but then we i don't know why we wouldn't get there so we come to the universities part i understand now you're a good argument about what the university said but now we're on pretext i'm trying to figure out you're saying there's no evidence a pretext well st i'm not conceding that they k that's why it's not the same no that's not why there's not the same he's not the same because the plaintiffs in this case had been counseled on these very very similar if not exact same behavior two years prior to the event in two thousand and fourteen and professor five did not have that prior history so for that reason there's a distinction but even if you wanted to go and say that professor five was a comparative simple which is what the trial court did what you find there is they were treated the same and it's because the university had decided to terminate unless either of them separately but the each of these professors were given the opportunity to provide some extenuating circumstances to why they should not be terminated that process was treated the same the difference was professor five raised his hand and said wait a minute i want to resign so he resigns plaintiff doesn't do that so that's not on the university the university treated the two the same it's the way they reacted that is different and that cannot be part of the test as to whether or not the university treated them the same so for that reason plaintiff does not survive does not prove the prime the facia case and then of course the university does present a legitimate nondiscriminatory reason and then you come back to  pretext and plaintiff has provided no additional information and is relying solely on the prime that they should which has already failed so for that reason both the race and gender claim should be dismissed and in fact what we just talked about was race there's really nothing in the claim about a case about you can resign so he wasn't told he could resign he whether he could have said let me resign again we have a timing issue which i think should go to a jury as to whether somebody in this given the scene this  very strange of her mation that he's going to be terminated when he's a tenured professor and there's never been a tenured professor at the u of o ever fired for any reason he's told on a friday that oh we're going to fire you want to stay after ok day you can you know think about it and then he's supposed to all of a sudden say well maybe i'll resign without even having the opportunity to sit down and think about it that should be a jury question i think the inquest case certainly doesn't say that you can't use circumstantial evidence of timing and severity regarding the you're working full time as a tenured professor you get fired and smeared in the media and social media and now you can't find any work and all of your contracts are terminated that's certainly circumstantial evidence sufficient to support a jury verdict in favor of the plaintiff on substantial due process claim what are you going to do with it was are qualified whether the actors behavior violated the plaintiff's rights this is this issue of a causal link regarding the damages that ensued is not proper subject of qualified immunity but even if were certainly all of the prior case law about stigma plus would support this going to a cherry on the factual if when the stigma on the plus were committed by different government i don't know that she i'm sorry yes yes you do not require prior th circuit precedent on that issue and a circuit split does not prevent an issue from being clearly established and it was clearly established in the bulk of the case that it doesn't have to be the same actor but here it is the same actor because it's a university that did both acts it doesn't matter which individual did it it was an official act thank you you're on your side thank you very much it's just are you to submit