she's asking the court to correctly apply the summary judgment standard and find that a genuine and show of material fact exists regarding the reason dr hatcher was denied tenure and promotion such an analysis necessarily includes information regarding the credentials of dr hatcher and her male counterparts since different standards were applied to dr house share in those militant male counterparts well my question she was this the members of the college of liberal or liberal arts standing committee on promotion and ten year though did five four to grant tenure and five four to deny committee they voted to grant her both tenure and promotion because they found that the process to date had not been followed correctly and there were errors now i think that the question is why would the dean's decision which was asserted to be based on the quantity of research why would that be pretextual if that's very similar to the issue that committee at the college level had also zeroed in on well they came out slightly differently because they voted for tenure but when the dean says its research and because of research that i think we should not grant tenure why why as a pretext for as far as the  there were differences in how she treated the females in the males so for instance in dr blum and dr filters letters she included language that the department is in the best role to make decisions regarding scholarship that same language wasn't included for dr hatcher as the only female and additionally in writing her recommendation letter for dr blum she took comments from the external reviewers who were also at the initial stage giving feedback to the department the chair and the college as to whether a particular candidate should be granted tenure promotion or not she took negative comments from those external review letters and kind of explained them into a positive connotation for dr hatcher she took seemingly positive comments and put in a bit of twist on them so for instance in dr hatcher's case external reviewer said that although she's in a narrow field it's not mainstream a law and society scholars and mainstream that her contribution to the subfield has been great or as she she's on a trajectory for important works in the future is the differential treatment between the male counterparts compared to dr hatcher based on the evidence in the record a jury could determine that dr hatcher was denied promotion in ten year because of her gender or at least that gender played  to rely on and there's a comparison to dr hill years he wasn't in the department of political science he was in the department of criminal justice and he's also a law and society scholar so him and hilliard was that he was an asset to the department that we should they should be lucky to have him because it's so narrow it's not mainstream for dr hatcher it was the opposite it was narrow it was not innate mainstream but she wasn't an process still involved in making the recommendation she's just not as far up the chain as she was our issues now and there was nothing in the university's p disagree with the department's assessment of your qualifications right no there's nothing in the record that there is are the policies that say they can't disagree and you know trying to suggest that higher levels of  consideration and dr kim flannery one give a clear answer dr clinton said she just walked about and wouldn't give an answer so dr clinton actually testified that the only reason he could see for the dems friends based on his analysis of their qualifications and credentials was the only difference between dr hatcher and the males was gender but why does that make sense when the votes were clearly very different still three of those times i think it's being in the actual college environment going through the process and looking at dr clinton's in his input on it his analysis of everything i think it boils down to his understanding of why the votes were death threats based on the credential of the three that a jury should weigh the facts judge the credibility of the witnesses and make a determination instead of the district court doing so just the record tell us if she's still teaching this no you i don't believe it does case that she had no evidence of gender discrimination what i'd like to point out about that is that dr hatcher testified in her deposition in direct response to counsel's questions and at least one of those pros prefaced with the phrase as you sit here today the additional questions on that same line there was an inference that it's as you say here today do you have any evidence of gender discrimination what counsel appeared to be looking for was a smoking gun and that's something that dr hatcher's never claimed to have what d shown the court what's in the rocker it is a mosaic of evidence giving rise to the inference that this was gender discrimination or was improperly motivated by her gender and additionally on march twentieth two thousand and fourteen when dr hatcher was deposed she had received some prior to that but following her discovery she received over a thousand pages and there were also seven more depositions taken following her own so to characterize dr hatcher's testimony as showing that she doesn't have any evidence that the denial of her promotion and tenure was based on her gender is improper it proves nothing other than dr hatcher's knowledge of the evidence that was discovered as of the date of her deposition can i ask you about your retaliation claims  the what are you alleging were the adverse actions that were take the protective actions the e e o c charge and the complaints of the concerns of sexual harassment and in retaliation for making record i don't believe the actual ego see charges self just the references to the e e o c charge or in the record defendants also argue that dr hatcher can be tenured without promotion because the colleges policy states that it's expected that both will happen simultaneously and expectations is not a mandate what defendants fail to acknowledge is that yes i use policy which supersedes the college's policy states in your kind of current any role  and further assistant professors have been tenured in the past the jury can weigh the evidence and judge the witnesses credibility to determine the dr hatcher was treated differently than her male counterparts and deny promotion and tenure because of her gender  as to the second part of the appeal dr hatcher maintains that she properly prepped played count two zero as judge shawn noted the protected activity in the retaliation we just discussed at the district court determined that the protected what were the sexual harassment allegations incorporated within count two because their first mentioned in count four and in count true it says based on what's stated above so i mean there was money everything has been cooperated up to that of the district court's discretion to find count two deficient but where she disagrees with the district court is the dismissal with prejudice without leave to amend as noted it was a minimal deficiency it was saying that protected activity was not specifically identified so to do that really it's a minimal amendment to the complaint to specifically allege the protected activity the district court was told in our response in opposition to the motion to dismiss an oral arguments on the same what the protected activity was and a request for leave to amend was made both during the response in opposition and in the motion to reconsider mandated to report concerns of sexual harassment and therefore her speech was protected under the first amendment but didn't the district court also say that even if she were merely encouraged to make these reports that that would be was more appropriate for summary judgment at that point but how would your proposed amendment have cured the problem that the district court identified as the district court has said even if it's encouraging and that's not going to be until the case law on point states that it has to be within the scope of your employment so a job duty or are you being mandated simply encouraged or you know some expectation on some level that you need to come and report these concerns as insufficient for instance if it's within your your job to complete memos regarding your thoughts on a case and then submit those for consideration by someone your supervisor that falls within the scope of your job duties for dr hatcher and nothing in her job duty concerned her complaints of sexual harassment or passing those concerns on to someone higher than her own p good morning and may please the court i'd like to begin where judge rosen stingel ended and her carefully thought out opinion granting summary judgment to the university in this case and she wrote simply put there is not even a scintilla of evidence from which the trier of fact could find that the university's proffered reason for denying tenure to dr hatcher was deliberately false or motivated by the fact that she was a woman no your honor for several reasons first of all it is not unusual at all as we know that many of these kinds of cases have come before this court we know it's not unusual at all for academics to disagree about what emphasis should be given for instance to an external review to assessment of teaching or service or research dr clinton's testimony on that point that you're referring to your honor is his as an academic which he's fully entitled to have and to give that she being the dean she should have given additional emphasis to external reviewers that's his judgment and that wasn't the judgment of the dean who as i think all of you have noted in your questioning the system at southern illinois university contemplates a multi layered review and each level of review anticipates that there is going to be a separate and careful consideration of the tenure and promotion dossier of each candidate and it is not a situation where it is enough for the department members to support a candidate for tenure and that there is simply a rubber stamp at the college committee by the dean by the provost that is not the situation that exists under these circumstances so while dr clinton as department chair is fully entitled to give his opinion as to her her own a few days and her qualifications for tenure promotion that does not guide a need not guide the decision of the dean and in fact of course she relied on a number of considerations in the colo committee the college of liberal arts committee deliberation where there was a five four vote in favor of tenure but a five four vote against promotion very unusual we pointed out in the brief that while it's potentially possible for someone to obtain tenure without promotion the cola papers themselves speak to that and say that that is not what is anticipated that in fact the chairman of that committee of the cola committee testified that a negative vote on permitted on promotion from his point of view was tend to mount to a negative vote on tenure as well how many how many times as it happened the ten years and granted without  i don't know that to answer that question i believe dr schuchat testified that he was unaware of any instances in the cola committee committee and during his time in the cola committee where that has occurred but even assuming it had occurred in the past this was important to the dean the fact that you had this highly divided split vote and not only that but she found when she did her own independent review dossier that the fact that dr hatcher had one peer reviewed published article during her six year probationary period was simply insufficient from the standpoint of research to warrant tenure and promotion and kimberly kemp leonard was compassionate in her letter she wrote that this was a difficult decision but her assessment was that it just simply wasn't good enough to have one peer reviewed publication do believe and moreover it is undisputed in this case that both of them had six peer reviewed publications on to their credit during their probation time southern illinois university so really they w comparable and the reason i bring that up because it does relate to the issue of pretext in judge rosa stengel pointed this out in her in her opinion if there were a case presented to this court where there was an argument that hatcher was so much more qualified then that those to whom she compares herself then perhaps that would support an argument that the dean's recommendation against promotion and tenure and the provost recommendation again from promotion tenure were pretextual and that's what the case law says if you compare candidates in the pretext analysis and there's such an overwhelming difference between comparatives and the plaintiff is so far superior then that perhaps that supports a tribal issue of fact on the issue of free text but of course that doesn't exist here and we haven't even talked about the mill you that were in that is of course academic decision making where we have decisions a judge ruled in or of course you'll recall a case involving same xavier university in one reyes decision that you were on where very similar actually in a number of material respects to this case where this court focused on the pretext analysis and held actually while in that case i believe judge roemer you correct me if i'm wrong but i think there are actually statements relating to the religious preferences of the plaintiffs in that case yet that was not enough evidence to support it jury trial on the issue pretext and similarly here there is simply nothing that demonstrates that either the dean or the provost did not fall asleep believe that dr hatcher's dossier with regard to research was insufficient doesn't record indicate number well i guess i would respond this way your honor the there is no comparative analysis that is done by the cola committee in other words when they review  so we really can't know that but we do know it starkly in the votes that they viewed the and not only the votes but there are accompanying letters that the cola committee chair writes with regard to the deliberations of the cola committee and those are a part of the record in this case and in each case with regard to hilliard and bloom the cola committee members held unanimously that bloomin hillier had sufficient research to warrant promotion in ten years of an illinois university so and that of course is the key point here is that in something that is actually not even mentioned in the briefing by dr hatcher and that is th committee in its written document describing their deliberations specifically states that dr hatcher's dossier demonstrated excellence in teaching and service but not in research if i could i'd like to answer a few other questions or address a few other questions that were raised during my friend's remarks earlier i think we've already talked about the importance of the cola committee deliberations and why  the cola committee is essential to how the dean made her decision in recommending against promotion and tenure for dr can i steer you into the retaliation you may issue and let's talk about retaliation can you explain to me why count two isn't adequately pled it says she fallen e e o c charges says the charge was mentioned during her grievance appeal and it says the chancellor chang overruled the board in a way that was tied to the pending grievance as it is as a pleading matter why doesn't that put the defense on notice as to what the retaliation theory is all about first of all with regard to the issue of whether or not the ultimate adverse employment action was something done by the chancellor and i think that was the nature of your question that you were asking my friend earlier the theory of this case has always been as pleaded and as argued in the court below and i believe as briefed is that the adverse employment action was denial of tenure in terms of the recommendation of the dean in the provost which are both of which of course long predated the e e o c charter and in fact that it's possible to have multiple adverse decisions well i'm not sure it is possible in this case i suppose it would be possible in some cases but in fact the plaintiff has pleaded specifically in count four you'll remember this judge shaw that the decision by the dean to recommend  against promotion tenure for dr hatcher was faithful to her application for promotion tenure it was a fait accompli when the dean gave a negative recommendation and that's why she said the dean's involvement was so critical and i think we heard that in april of two thousand and twelve denying tenure and giving her the one year contract terminal contract and it's not until october of that same year many months later that the e e o c charge was actually filed so with regard to the e e o c charge it's simply not possible to link up the e e o c charge to the adverse employment action where both the dean and the provost make a determination that  that you've got the board's decision in between there which then could theoretically put tenure back on the table because the way they vote in the now insular overrules their decision when you're talking about the board i'm assuming at the judicial review board and let me talk about what they do for just a moment the j r b is empowered to do one thing and one thing alone determine whether or not to proceed jer's with regard to the tenure and promotion process we're following they have no power to review the substance of the tenure and promotion decision in fact they specifically as to that responsibility because they're not qualified to review the da ca they don't make a review of the dossier for purposes of determining qualifications for tenure promotion promotion and in this case what they found was that procedures had not been followed because the provost's letter with regard to dr hatch are contained in sufficient detail as required by the policies and so the chancellor in accepting in part and rejecting in part the recommendation which is all it is a recommendation of the g r b determine you know you're probably right there could have been more detail in the letter from the provost to dr hatcher with regard to promotion but the chancellor appropriately rejected as she had done previously the notion that because of a procedural glitch that there should be tenure and promotion granted to dr so that is the nature of the review that the j or b does and that is what the chancellor was looking at when that came to her many months later the decision in other words your honor with regard to dr hatcher's promotion tenure had had been made with all but the issue of procedural regularity long before dr hatcher ever files an ego see charge and i believe that addresses fully the question concerning the timing issue moreover there is no question that dr hatcher had multiple opportunities to plead this case as she saw fit she she in fact filed an amended complaint as the court is well aware and here we are today as we were in the district court still not knowing what facts the dr hatcher believes she should have pled or could have fled that would save her retaliation claim under title seven or her retaliation claim under the first amendment i see i'm out of time and unless there are other questions i want to thank the court very much on this current you used your time but i'm going to give you two more minutes if you wish them thank you i just have a couple points i'd like to me mr cooper brought out several reasons complainer dr tim complainer testified for her decision to deny promotion and tenure again i want to point out that weighing credibility weighing dr kemp leonard's credibility is a issue for the jury it's not an issue for the district court so whether dr kemp leonard's reasons for denying promotion in ten year whether those are believable or not isn't something the district court should have decided and to say that dr hatcher had only one peer reviewed article is inaccurate it's actually two peer review articles if you look at her credentials and there were also multiple presentations between thirty and forty and i believe nine published book reviews along with some other published materials it wasn't just dr hatcher's belief that she just she deserved tenure dr clinton also with ask the court that you reversed summary judgment on count one reversed the dismissals with prejudiced on counts two and four and being the case back to the district court thank you thank you thank