please the court thank you for this audience today my name is sam hahn and i am the appellant in this case this court should reverse the district court's motion for summary judgment ruling for four reasons first the district court ignored the fact that within three hundred day window as was required by law and fourth the pleading show that the individual defendants are supervisors to begin with as odd as this may be if the court permits i'd like to just refer to myself in the third person just for the problem really is not a because the complaint does plead a law as a bill claim for discrimination and also the facts that were played in this complaint should not have been disregarded but should have been given a presumption of truth at the outset the first reason that this court should reverse the lower court is because the lower court disregarded a whole bunch of fact that were entitled to a presumption of truth because it eroni asli concluded that those facts were legal conclusions and some of the facts that it disregarded are for example paragraph ninety five defendants violated their own policy in evaluating dr haan that is a factual allegation and the court disregarded that concluding that it was a legal conclusion and that c the defendants violated their own policy in evaluating dr hahn if you think that back it is a fact and the distinction between a legal conclusion and a factual assertion is very simply that a factual assertion is something that is specific to the case that entire process of the way that the contract is worded is that i'm neither guaranteed tenure nor retention nor promotion but the one thing that the policy manual does guarantee is a fair and equal process and in addition to that in making that tenure decision the university of dayton and all the members that were on the committee are prohibited from discriminating against the person that is being evaluated so not only is that a contractual provision but it's a it's a requirement of the law that  evidence that you were discriminated against races race and gender your honor yes there are several interactions that i've had with former tenured professors that have indicated that there is a good basis for gender and race discrimination but when it's all said and done at this stage of the proceedings were on a motion to dismiss your honor so the question of whether or not those facts exists are something that i should have been entitle to get into in discovery without having this case  we submit that in this particular case that heine did allege a plausible case for discrimination and the reason for that is because all of the elements under mcdonnell douglas were specifically alleged and facts under each of those elements were specifically more slowly one zero nine of we're you know and that recites hahn is the only non tenure track with a member of the university of dayton school of law that has been subjected to an evaluation process that violates defendant's own policies but but you have to say for the promise and you're talking about  commercial and that comparison does come in in paragraph one hundred nine your honor which recites that the scholarly writings for all of the other non tenured faculty members have been jury by scholars outside of the university of dayton school of law and then in paragraph one ten the complaint recites that despite the fact that dr hahn writes in a very specialized field for which none of the committee members had any experience dr hans scholarly writing has never been sent to be jury by an outside scholar and with reference to the specificity whether the university of dayton in the defendants had sufficient notice under rule eight to understand what was being alleged against them and while this doesn't appear in the records there are all when you say ever batted or worse treated better is that they ignore the facts so we're entitled to the truth and if we look at the record there are a whole bunch of facts and the district court decided to disregard when those factual ferment were entitled to a presumption of truth and if we look at those affirm and just to give an example the difference between a legal conclusion and a factual of german a legal conclusion would be a general statement that is applicable to all cases so for example the statement well i don't know of any or many legal conclusions of a political  facts are well pled that those facts should be assumed to be true rather than being disregarded and one example of the difference between the legal conclusion and a factual ferment would be a legal conclusion would be plaintiff is a member of a protected class completely general no ferment would be on is a forty two year old asian american male that has the specifics and it's a fact and here if we look at the complaint and all of the paragraphs that were stricken by the district court the district court's numerous paragraphs that were strictly factual allegations and that's an error and based on that stricken complaint all of the parrot insufficient now at least one million bold you simply st released according to supreme court cite specific facts that make the the case a plausible case used to be you could just sort of general and allege mixed american male i'm in a protected class that there was an adverse decision that was made against me by the university and that in all relevant respects i was treated worse off and then all of the other non tenured faculty members of which there is only five of them and none of two thousand and eleven and all of the activity with respect to the non renewal of mr han's teaching contract was completed by i believe may eleventh two thousand and eleven so dean mcgreal came in after the fact mean mcgreal was named in the amended complaint going to complain all of the complaints here and over in state court named in them because he participated as a university representative to try to give you a blanket answer that this case would have survived under communism versus gibson i can't actually do that there's no question that if it was just notice pleading under conley vs gibson the discrimination claims in this case might have survived because he says the magic words racial identity gender identity bad treatment and it was due to that and that that used to be enough under  calmly and gibson this case is a little bit different because as as a judge clay has already noticed dean mcgreal when you've been involved in this case so he would have been kicked out whether or not anybody else would have been  there are also there's a statute of limitations issue or a time bar with respect to the e e o c proceeding so the title seven claim would be gone because of the failure to file that on time title seven claim against the individuals would be gone under any circumstance because they were named in the charge whether or not it was timely filed so there are a bunch of things like that that help prevent me from telling you directly that this case would have survived  in a case in which judge clay participated be flexed our bank case which was decided last august a couple of weeks ago and in that case the specific issue that you have noted was directly addressed and that is you can't simply say i was treated differently than somebody else i can't see you can't simply say i was treated differently than somebody who was not of my protected class you have to  something about that person the confusion that has come up on that in this case is the notion that somehow the district court required mr hahn to plead a prime if i should case under mcdonnell douglas case under mcdonnell douglas is a red herring has nothing to do with this case judge rose said twice you're not required to plead a primal case under mcdonnell douglas but if you are going to rely on a prime a case under what donald duck was to support the notion that there's something more than what flag star bank says you've got to have something more than simply racial identity and bad outcome if you're going to do that to say there's something more that ties the racial identity in the bad outcome to race or gender and you're going to use some element of mcdonnell douglas to do it then you've got to plausibly plead that element of mcdon you're not required to it's not necessary but simply saying that the mcdonnell douglas formula is not also sufficient and that's what twang clinic ball essentially stand for and that's certainly what the result is in flexcar bank and that's what the result was with judge rose below he said he hasn't told me anything about who these people are what the circumstances were in which they were badly treated or or better treated than he was and he went through  jointly within three hundred days of the the first notice of the last event of discrimination in the first complaint in this case and in the first amended complaint in this case mr hahn said i found a charge on march twenty three and he had a document attached exhibit the famous exhibit w and that document said so that document by itself puts him out of court he's not allowed to file a title seven claim at that point the e e o c quickly made that determination and said in that same exhibit the second page that he's out of time and that's what we had after we moved to dismiss the first amended complaint on the basis of this thing being out there there was some there was a in opposition file by mr hahn in wh which was attached to a his memo went up to our motion for motion to dismiss the first amended complaint that issue never came to the judge judge rose never far as i know probably never saw that motion never saw those attachments at the same time that samhain filed the motion to dismiss the first amended complaint he also filed a motion for leave to file the second amended complaint and when he did that the judge said no i'm not going to the first  and we move again to dismiss his opposition docket for twenty seven in the court below does not mention that exhibit that february twenty one document that's in the record judge r searched in vain for a february twenty one charge in the amended compare the first amended complaint the second amended complaint in the memoranda and he says he looked for he couldn't find it and in the memoranda in support of an opposition to the motion to dismiss the second to complain it wasn't attached to any of those things now we're being told that i should have picked this document that he was aware of exhibit w should not have picked that he should have picked the february twenty one and use that but he wasn't aware he was there it was never pointed out to him in the in exhibit documents twenty seven the opposition to our motion to dismiss the second a complaint as far as we can tell you never saw it because it was  writer i think the record is fairly definitive that he was not continued because of poor scholarship and i think even in the in the second amended complaint you can see what the reason for that conclusion w specifically i believe if you look at this i believe it's exhibit exits the plate of statement to the dean about why he shouldn't be fired and he's got a laundry list on it on that document where he goes through the three articles he published and the last of those three articles was published fifteen months before he was not renewed it was also or i'm sorry not published submitted for publication accepted for publication the last of those articles was submitted for publication before the first evaluation he had with the p r t committee they criticised the articles that he was they were given to review and they said come back again in a year and we'll see if you've improved your scholarship that document shows now the p r t committee the six individual the fandoms unanimously concluded that his teaching was not adequate that decision was reversed by the dean she said knowing his teaching marginally acceptable we can stay on for that but his scholarship i got to agree with you just isn't there there wasn't a record of scholarship and the scholarship he had had criticism that had not been remedied or repaired during the time he had left that there is an expectation that if you want to move up in scholarly work as a professor at a law school you've got to publish i mean i just that simple and if you don't publish as he didn't for the fifteen months before he was not renewed no one's going to publish the first place but what troubles me is that when this appeal was taken the basis for the appeal regarding being mcgreal was that they had alleged allegedly had alleged in the second discrimination by doing material and we in opposition said you know there is nothing in the second amended complaint that uses the words discrimination with respect to being material there is no indication that there was any guess that that isn't going to work the mcgreal didn't engage in direct acts of discrimination he ratified after may eleventh the previous may eleventh discriminatory acts allegedly committed by the others under ohio law and under federal law ratification by an individual does not constitute liability for discrimination because an individual can only be liable for actual discriminatory tory acts committed by him and not for ratification of somebody else's i think that's about it thank you thank please the court only a few points on rebuttal the first one is with reference to the yosi letter the sequence of events was on february twenty first two thousand and eleven the yosi was notified by letter of charge at which point on march first the yossi sent back letter saying send this back to us on form five form five was what was submitted on march twenty third the question of whether or not the judge had in front of him exhibits in the records twelve two and twelve three which are those two letters is irrelevant and the reason for that is because those two dates march first and february twenty second were expressly played in paragraphs fifty three and fifty four and as factual allegations they were required to be presumed to be true the truth of those two statements is also bolstered by the fact that those letters were made of record in the lower court the second one it refers to the specificity of the complaint and how specific it is as an initial matter we reiterate that rule eight does not require the specificity but here in the amended complaint we have the while the where the when the how and the who the only deficiency in the hood being that the individuals were not named by name but they were all specifically identified and paragraph one zero nine one ten where all of the other non tenured professors were listed as being treated differently if all doesn't identify every other individual but i'm not sure what will and that distinguishes this particularly case from flag star as well and flags for the allegation was that there were hundreds of thousands of people that were denied credit and nobody knew how to determine who those hundreds of thousands of people were here with the university of dayton and there were five individuals and all of those we pled that all five of them were treated differently there's no other way to make it clearer than all of them were treated differently and hahn was the only one that was singled out and they don't dispute the fact that i was the only