Monica Emeldi v. University of Oregon

Filing

FILED OPINION (RAYMOND C. FISHER, RONALD M. GOULD and RICHARD A. PAEZ) REVERSED AND REMANDED. Judge: RCF Dissenting, Judge: RMG Authoring, FILED AND ENTERED JUDGMENT. [8111487]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



MONICA EMELDI,

UNIVERSITY OF

Plaintiff-Appellant,
v.
OREGON,
Defendant-Appellee.




No. 10-35551
D.C. No.
6:08-cv-06346-HO
OPINION

Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted
June 9, 2011—Portland, Oregon
Filed March 21, 2012
Before: Raymond C. Fisher, Ronald M. Gould, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Gould;
Dissent by Judge Fisher

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COUNSEL
David Force, Law Offices of David C. Force, Eugene, Oregon, for plaintiff Monica Emeldi.
Denise Gale Fjordbeck, Assistant Attorney General, Office of
the Oregon Attorney General, Salem, Oregon, for the University of Oregon.

OPINION
GOULD, Circuit Judge:
In Jackson v. Birmingham Board of Education, the
Supreme Court held that retaliation by a federally funded educational institution against someone who complains of gender
discrimination is actionable under Title IX. 544 U.S. 167, 171
(2005). We must decide what a plaintiff must prove to prevail
on a Title IX retaliation claim, and whether plaintiff Monica
Emeldi adduced sufficient evidence of her claim to overcome
summary judgment.
I
Monica Emeldi sued the University of Oregon, alleging
that it prevented her from completing a Ph.D. program in

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retaliation for having complained of gender-based institutional bias in the University’s Ph.D. program, and gender discrimination by her faculty dissertation committee chair.
Emeldi was a Ph.D. student in the University of Oregon’s
College of Education, in its Department of Special Education.
Her advisor and dissertation committee chair, Edward
Kame’enui, took a sabbatical starting in the fall of 2005.
Emeldi asked Robert Horner, another professor, to replace
Kame’enui as her dissertation chair. Horner agreed. During
the time of Emeldi’s work with Horner, Emeldi and other
Ph.D. candidates complained to Mike Bullis, Dean of the College of Education, about lack of adequate support for female
Ph.D. candidates. In May 2007, Emeldi produced a memo
summarizing a meeting between Bullis and several graduate
students. That memo lists, as one of fifteen topics discussed,
the students’ concern about the Department’s lack of female
role models. The memo says:
Students request that qualified Women be hired into
tenured faculty positions [emphasis]. Students
attempted and were unable to identify a current
female appointment to a tenured faculty position.
Students need to experience empowered female role
models successfully working within an academic
context [emphasis]. Doctoral students request that
the college model a balance of gender appointments
that reflect the proportion of student gender population ratios.
While the University maintains that no one other than Bullis knew of the memo, Emeldi’s position was that she was told
that all Department faculty received copies; that it was “common knowledge in the College of Education” that she was dissatisfied with the Department’s level of support for women;
that Horner, her dissertation chair, was treating her less favorably than his male graduate students and did not give her the
same support and attention that he gave male candidates; that

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Horner often ignored her and did not make eye contact with
her; that, when Emeldi attended Horner’s group meetings
with his graduate students, either she was not on the agenda,
or no substantial or meaningful work of hers was discussed;
and that Horner’s male students had opportunities that were
not available to his female students, such as access to more
and better resources, including more office space and better
technology for collecting data.
Whatever their teacher-student relationship at first,
Emeldi’s relationship with Horner as Ph.D. advisor soured.
The reasons for this development are unclear. The University
vigorously disputes that Horner treated his male students
more favorably than his female students, and its position is
that Emeldi’s relationship with Horner deteriorated because
Emeldi “refused to listen to Dr. Horner regarding the necessary changes to produce a dissertation that would be a focused
piece of scholarship.”1 Emeldi attributes the worsening relationship to Horner’s gender animus.
In October 2007, Emeldi met with University administrators Annie Bentz and Marian Friestad to discuss her worsening relationship with Horner. Emeldi says that she complained
to Friestad about the Department’s “institutional bias in favor
of male doctoral candidates, and a relative lack of support and
role models for female candidates.” To illustrate her experience of this “institutional bias,” she said that she “identified
the chair of [her] dissertation committee, Dr. Rob Horner, as
being distant and relatively inaccessible to me.” According to
Emeldi, Friestad then alerted Horner that Emeldi had accused
1

The summary judgment record contains evidence of email communication between Horner and Emeldi in mid-2007. In July 2007, Emeldi submitted to Horner a “Dissertation Prospectus” that laid out her research
plans. In September 2007, Horner provided feedback on Emeldi’s proposal. Horner’s feedback stated that Emeldi had proposed a “tremendously
interesting project,” and had “done brilliantly in [her] efforts,” but also
expressed concern that “the reader struggles to find the details that can be
examined within a dissertation.”

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him of discriminating against her. While Friestad does not
dispute that she spoke with Horner, her version of the conversation Emeldi described is markedly different. Friestad, who
is an administrator and professor, says that Emeldi never
alleged discrimination in their discussion about Horner and
that Friestad and Horner discussed only Emeldi’s dissertation,
not an allegation of discrimination. However, Emeldi in her
amended declaration explicitly said that Friestad told Emeldi
that Friestad had “debriefed” Horner on the conversation Friestad had with Emeldi. Within a few weeks, Horner, by email,
resigned as Emeldi’s dissertation chair. According to Emeldi,
Horner then told other Department faculty members that
Emeldi should not be granted a Ph.D., and should instead be
directed into the Ed.D. program, which Emeldi says is a less
prestigious degree. The University denies that this occurred.
Emeldi sought a new dissertation chair, but did not find
one. According to Emeldi, she asked fifteen faculty members
in her Department, some of whom said that they were too
busy and some of whom said that they were not qualified to
supervise her research. The University doesn’t dispute that
she inquired of fifteen faculty members, but criticizes
Emeldi’s efforts to obtain a new dissertation chair as inadequate, arguing that she did not try to recruit two faculty members who were qualified and available, including her former
advisor Kame’enui. While seeking a new dissertation chair,
Emeldi also pursued the University’s internal grievance procedure, which, she says, contributed to her inability to find a
willing faculty member. Unable to complete her Ph.D. without a dissertation chair, Emeldi abandoned her pursuit of the
Ph.D. degree, thus effectively withdrawing from the University.
Emeldi then filed this lawsuit in Oregon state court. The
University timely removed the action to federal court, but
mistakenly said in its notice of removal that Emeldi’s suit was
filed in Linn and Multnomah Counties, when in fact the suit
was filed in Lane County. The University then filed an

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amended notice of removal correcting these errors, but the
amendment was filed after the 30-day removal deadline had
expired. Emeldi sought remand on the basis that the defective
notice of removal was fatal to federal jurisdiction, but the district court rejected this argument.
After a period of discovery, the University moved for summary judgment, which Emeldi opposed. The district court
granted summary judgment for the University on the alternative grounds that Emeldi did not engage in protected activity
and that she adduced no evidence showing that the University’s adverse actions were causally related to her protected
activity. Emeldi v. Univ. of Or., No. 08-6346, 2010 WL
2330190, at *2-5 (D. Or. June 4, 2010). Emeldi timely
appealed.
II
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review a grant of summary judgment de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002). “Summary judgment
is warranted when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.’ ” Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216
(9th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
III
[1] We start with the statutory premise that Title IX of the
Education Amendments of 1972 bars gender-based discrimination by federally funded educational institutions. It provides, “No person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .”
20 U.S.C. § 1681(a). In Jackson, the Supreme Court held that
“[r]etaliation against a person because that person has com-

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plained of sex discrimination” is a form of gender-based discrimination actionable under Title IX. 544 U.S. at 173.
[2] Until now, we have not had occasion to say what a
plaintiff must prove to prevail on a retaliation claim under
Title IX. We join our sister circuits in applying the familiar
framework used to decide retaliation claims under Title VII.2
In this framework, a plaintiff who lacks direct evidence of
retaliation must first make out a prima facie case of retaliation
by showing (a) that he or she was engaged in protected activity, (b) that he or she suffered an adverse action, and (c) that
there was a causal link between the two. Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003). We have emphasized that to make out a prima facie case, a plaintiff need only
make a minimal threshold showing of retaliation. As we have
explained, “ ‘The requisite degree of proof necessary to establish a prima facie case for Title VII claims on summary judgment is minimal and does not even need to rise to the level
of a preponderance of the evidence.’ ” Davis v. Team Elec.
Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (quoting Wallis v.
J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (ellipses
omitted)); see also Humphries v. CBOCS W., Inc., 474 F.3d
387, 405 (7th Cir. 2007) (noting that “[e]stablishing a prima
facie case” is “not . . . an onerous requirement”).
[3] Once a plaintiff has made the threshold prima facie
showing, the defendant must articulate a legitimate, nonretaliatory reason for the challenged action. Davis, 520 F.3d
at 1089. If the defendant does so, the plaintiff must then
“show that the reason is pretextual either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the
2

See, e.g., Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d
81, 91-92 (2d Cir. 2011) (applying the Title VII framework to a Title IX
retaliation claim); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st
Cir. 2002) (same); Clinger v. N.M. Highlands Univ., Bd. of Regents, 215
F.3d 1162, 1168 (10th Cir. 2000) (same).

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employer’s proffered explanation is unworthy of credence.”
Id. (internal quotation marks and citation omitted).
We stress three reasons for adopting the Title VII framework for Title IX retaliation claims. First, the legislative history of Title IX “strongly suggests that Congress meant for
similar substantive standards to apply under Title IX as had
been developed under Title VII.” Lipsett v. Univ. of P.R., 864
F.2d 881, 897 (1st Cir. 1988). The House Report provides:
One of the single most important pieces of legislation which has prompted the cause of equal employment opportunity is Title VII of the Civil Rights Act
of 1964 . . . . Title VII, however, specifically
excludes educational institutions from its terms.
[Title IX] would remove that exemption and bring
those in education under the equal employment provision.
H.R. Rep. No. 92-554, at 46 (1972), reprinted in 1972
U.S.C.C.A.N. 2462, 2512.
Second, we have found the Title VII framework useful in
assessing claims of discrimination and retaliation outside the
Title VII context, even where its application is not mandatory.
See, e.g., Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201,
1207 (9th Cir. 2008) (applying the Title VII framework to a
claim under the Age Discrimination in Employment Act);
Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,
754 (9th Cir. 2001) (applying the Title VII framework to an
equal protection claim); Gay v. Waiters’ & Dairy Lunchmen’s
Union, Local No. 30, 694 F.2d 531, 538 (9th Cir. 1982)
(applying the Title VII framework to a claim brought under
42 U.S.C. § 1981).
Third, the Supreme Court has often “looked to its Title VII
interpretations of discrimination in illuminating Title IX.”
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 616 n.1

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(1999). Following this approach, we hold that the Title VII
framework generally governs Title IX retaliation claims.
IV
A
The first requirement of a prima facie case of retaliation is
that the plaintiff engaged in protected activity. Viewing the
evidence presented at summary judgment in Emeldi’s favor,
we hold that Emeldi’s complaints to Bullis and Friestad about
gender-based institutional bias, and to Friestad about Horner’s
unequal treatment of female graduate students, were protected
activity under Title IX.
[4] As an initial matter, we have no doubt that Title IX
empowers a woman student to complain, without fear of retaliation, that the educational establishment treats women
unequally. Jackson, 544 U.S. at 174; see also generally Lucy
M. Stark, Exposing Hostile Environments for Female Graduate Students in Academic Science Laboratories, 31 Harv. J.L.
& Gender 101 (2008). Emeldi’s complaint to Friestad that
there was institutional bias against women in the Ph.D. program and that her dissertation chair, Horner, was treating his
male graduate students more favorably than his female graduate students, is thus unmistakably a protected activity under
Title IX. The protected status of her alleged statements holds
whether or not she ultimately would be able to prove her contentions about discrimination. See Moyo v. Gomez, 40 F.3d
982, 984 (9th Cir. 1994).
Emeldi says that she complained to Friestad about the
Department’s “institutional bias in favor of male doctoral candidates, and a relative lack of support and role models for
female candidates.” Illustrating her experience of this “institutional bias” in speaking with Friestad, she says that she “identified the chair of [her] dissertation committee, Dr. Rob
Horner, as being distant and relatively inaccessible to me.”

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[5] It is a protected activity to “protest[ ] or other wise
oppose[ ] unlawful . . . discrimination.” Moyo, 40 F.3d at 984;
see also Bigge v. Albertsons, Inc., 894 F.2d 1497, 1501 (11th
Cir. 1990). In the Title IX context, “speak[ing] out against sex
discrimination”—precisely what Emeldi says that she did—is
protected activity. Jackson, 544 U.S. at 178. Accordingly, we
hold that Emeldi has alleged facts that, if true, demonstrate
that she engaged in an activity protected by Title IX.
B
The second requirement of a prima facie case of retaliation
is that the plaintiff suffered an adverse action. Viewing the
evidence presented at the summary judgment stage in
Emeldi’s favor, we hold that Horner’s resignation constitutes
an adverse action.
[6] In the Title VII context, the Supreme Court has said
that the adverse action element is present when “a reasonable
[person] would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable [person] from making or supporting a
charge of discrimination.” Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68 (2006) (internal quotation marks
and citations omitted). We have held the adverse action
requirement was satisfied, for example, when an employee
was forced to use a grievance procedure to get overtime work
assignments that were routinely awarded to others, Fonseca v.
Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 848 (9th Cir.
2004), when an employee was assigned more hazardous work
than her co-workers, Davis, 520 F.3d at 1089-90, and when
an employee was laterally transferred or received undeserved
poor performance ratings, Yartzoff v. Thomas, 809 F.2d 1371,
1376 (9th Cir. 1987).
[7] We will not establish a different rule on adverse action
for Title IX than for Title VII. Women students should not be
deterred from advancing pleas that they be treated as favor-

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ably as male students. A student cannot complete the University’s Ph.D. program without a faculty dissertation chair, and
the loss of a chair is an adverse action.
[8] This sort of adverse action bears analogy to the concept
of constructive discharge, in which a retaliating employer
creates working conditions so “ ‘extraordinary and egregious
[as] to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job.’ ”
Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007)
(quoting Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th
Cir. 2000)). Here, although the University did not formally
dismiss Emeldi from the Ph.D. program, as a practical matter,
it rendered her unable to complete the degree. A reasonable
person in Emeldi’s position—someone who had been abandoned by her dissertation chair and who was unable, despite
diligent efforts, to secure a replacement chair—could justifiably feel unable to complete the Ph.D. program. A reasonable
person would find these events “materially adverse” insofar as
they “might have dissuaded” such person from complaining
of discrimination in the Department. Burlington N. & Santa
Fe Ry. Co., 548 U.S. at 68. We therefore conclude that
Horner’s resignation was an adverse action.
C
[9] The third requirement of a prima facie case of retaliation is a causal link between the protected activity and adverse
action. “At the prima facie stage of a retaliation case, ‘the
causal link element is construed broadly so that a plaintiff
merely has to prove that the protected activity and the negative . . . action are not completely unrelated.’ ” Poland, 494
F.3d at 1180 n.2 (quoting Pennington v. City of Huntsville,
261 F.3d 1262, 1266 (11th Cir. 2001)) (alteration omitted).
Emeldi has met this standard. From the record, we conclude
that Emeldi has produced evidence from which a rational factfinder could find a causal link between Emeldi’s complaints

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of gender discrimination in the Department and the adverse
actions identified above.
[10] First, the proximity in time between Emeldi’s complaint to Friestad about Horner and Horner’s resignation as
her dissertation chair is strong circumstantial evidence of causation. See Cornwell v. Electra Cent. Credit Union, 439 F.3d
1018, 1035 (9th Cir. 2006) (“[C]ausation sufficient to establish the third element of the prima facie case may be inferred
from . . . the proximity in time between the protected action
and the allegedly retaliatory employment decision.” (quoting
Yartzoff, 809 F.2d at 1376)).3
[11] Second, Emeldi has articulated a theory of how
Horner found out about her complaints: Friestad relayed them
to him. Emeldi alleges that she complained of Horner’s gender bias—among other things—at her October 2007 meeting
with Friestad. Friestad admits that she relayed Emeldi’s complaints to Horner, but denies that Emeldi raised concerns
about discrimination at the meeting. Friestad also insists that
3

The dissent suggests that Cornwell is irrelevant because, it urges, we
there rejected a causal connection. But the idea that a causal connection
can be shown by proximity in time between protected activity and adverse
action is the well-established rule followed in many cases. E.g., Dawson
v. Entek Int’l, 630 F.3d 928, 937 (9th Cir. 2011); Bell v. Clackamas Cnty.,
341 F.3d 858, 865 (9th Cir. 2003); Yartzoff, 809 F.2d at 1376; Miller v.
Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986). The application
of that rule in Cornwell does not negate its application here. In Cornwell,
we concluded that Cornwell presented “no evidence raising an inference”
that his demotion was caused by his complaint because there was no evidence that the person who demoted him knew about Cornwell’s complaint
before his demotion. 439 F.3d at 1035. We also concluded that the “gap”
of nearly eight months between Cornwell’s complaint and his termination
was “too great to support an inference” that his termination was caused by
his complaint. Id. Here, by contrast, Friestad “debriefed” Horner about the
content of her discussion with Emeldi, thus “raising an inference” that
Horner knew about Emeldi’s complaint and resigned as a result. See id.
Also in contrast to Cornwell, there was only a short time of a few weeks
between Emeldi’s discussion with Friestad and Horner’s resignation without replacement.

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she did not inform Horner of any allegations of discrimination. Nonetheless, a reasonable jury, crediting Emeldi’s recollection that she complained specifically to Friestad about
Horner’s favoring of male Ph.D. candidates, could find a
causal link between Friestad’s conversation with Horner and
his resignation from the dissertation chair post. Stated another
way, a jury reasonably could infer that Friestad passed
Emeldi’s complaint on to Horner, and that Horner’s resignation not long thereafter4 as Emeldi’s dissertation chair was a
response to Emeldi’s complaint.
[12] Third, Emeldi offered evidence that Horner exhibited
gender-based animus in other contexts. See Coghlan v. Am.
Seafoods Co. LLC, 413 F.3d 1090, 1095 n.6 (9th Cir. 2005)
(stating that “evidence establish[ing] the employer’s animus
toward the class to which the plaintiff belongs” is relevant to
proving causation). Specifically, Emeldi said that Horner gave
more attention and support to male students and that he
ignored her and did not make eye contact with her. She contended that, when she attended Horner’s graduate student
group meetings, she was “not on the agenda, or when [she
was] on the agenda, that no substantial/meaningful work [of
hers was] discussed.” She gave specific examples of Horner’s
male students being given opportunities that were not available to his female students. For example, Horner allegedly
gave one male student access to more office space and better
technology for collecting data than similar female students.
[13] As the above discussion reveals, there is ample circumstantial evidence to establish causation. Emeldi also
points to other evidence in the record that would support a
jury inference of causation: (1) that Horner resigned as
Emeldi’s dissertation chair without designating or providing
4

Emeldi’s conversation with Friestad took place on or about October 19,
2007. Horner resigned on November 19, 2007. In Horner’s November 20,
2007 email to administrator Mike Bullis, Horner stated that Friestad had
contacted him a few weeks beforehand.

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assistance in securing a replacement chair is circumstantial
evidence of retaliatory intent; (2) that Horner praised Emeldi
on the progress of her dissertation, could, together with other
evidence, support the inference that his stated reasons for
resigning as her dissertation chair were pretextual;5 and (3)
that Emeldi could not secure a replacement dissertation chair,
despite asking fifteen faculty members, is circumstantial evidence that Horner poisoned his colleagues against her.
[14] These items together provide a sufficient basis for a
jury to find that Emeldi’s protected activity brought about
Horner’s resignation.
The dissent argues that Emeldi’s position is based on
impermissible speculation, citing Cafasso v. Gen. Dynamics
C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011). But this
case is nothing like Cafasso. There, we rejected Cafasso’s
claim that her employer eliminated her department and terminated her employment in retaliation for her inquiries about
suspected fraud. Cafasso, 638 F.3d at 1060-61. The employer’s position was that the action was part of a corporate reorganization unrelated to Cafasso’s inquiries; Christopher
Marzilli, the official who terminated Cafasso, testified that he
did not know about her inquiries when he made the reorganization decision; and “Cafasso admitted in deposition that she
had no reason to disbelieve Marzilli’s account.” Id. at 1060.
Cafasso nevertheless argued for a “cat’s paw” theory of liability, see generally Poland v. Chertoff, 494 F.3d 1174, 1182-83
(9th Cir. 2007), which we rejected as speculative. Cafasso,
637 F.3d at 1061. Cafasso would have had to establish “that
one of Marzilli’s subordinates, in response to Cafasso’s protected activity, set in motion Marzilli’s decision to eliminate
Cafasso’s department and job, and that the subordinate influ5

See Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1218 (10th Cir.
2003) (stating that evidence of pretext is also probative of causation). We
note that the email in which Horner praised Emeldi’s dissertation work
also contains criticism of her scholarship.

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enced or was involved in the decision or decisionmaking process.” Id. (internal quotation marks, citation, and alteration
omitted). Because Cafasso did not “set forth non-speculative
evidence of specific facts” that this chain of events in fact
occurred, we concluded that to find liability would require
“undue speculation.” Id.
We do not disagree with the principle that mere speculation
cannot raise an issue of fact. But here, by contrast, Emeldi
proffered non-speculative evidence supporting reasonable
inferences of causation. Her declaration states that she complained to Friestad about gender discrimination in the Department and, at this stage, her assertions must be accepted as
true. The dissent reaches a contrary conclusion only by disregarding tried and true principles governing summary judgment. The dissent first asserts that Emeldi’s complaint to
Friestad that Horner was “distant and relatively inaccessible”
is not a claim of gender bias. However, the correct approach
is to consider Emeldi’s complaint in its context. See T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 631 (9th Cir. 1987) (“[T]he court’s ultimate inquiry is to
determine whether the ‘specific facts’ set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might
return a verdict in its favor based on that evidence.” (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986))).
Here, where the complaint that Horner was “distant and relatively inaccessible” immediately followed Emeldi’s complaint
of institutional bias, a jury could reasonably infer that she was
giving an example of the institutional bias that led to inadequate support for women Ph.D. candidates, and indeed the
normal reading of her “distant and relatively inaccessible”
criticism of Horner in context is that he was relatively inaccessible by contrast to his accessibility for male Ph.D. candidates.6
6

Emeldi’s declaration asserted, “I described one possible cause of that
problem as an institutional bias in favor of male doctoral candidates, and

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The dissent further argues that, even if “gender discrimination was discussed” between Friestad and Emeldi, it is only
speculative to infer that Friestad relayed Emeldi’s complaints
of discrimination to Horner. Again, the dissent reaches this
conclusion only by ignoring the general rules governing summary judgment. As noted above, as the nonmoving party
Emeldi was to be believed and reasonable inferences given
her. In her amended declaration, she explicitly states that Friestad told her that Horner was “debriefed” on their discussion.
If we assume Emeldi’s statements are true, a reasonable inference arises that Friestad “debriefed” Horner about Emeldi’s
complaints of gender discrimination. These facts are sufficient
to state a prima facie case.
D
Because Emeldi established a prima facie case of retaliation, we inquire whether the University has stated a legitimate, non-retaliatory reason for the challenged action, and if
so, whether Emeldi has shown that the reason is pretextual.
See Davis, 520 F.3d at 1089.
[15] The University says that Horner resigned for a proper
reason, that is, because Emeldi did not follow his research
advice. Further, University administrators did not provide a
dissertation chair because, the University says, the faculty
members who Emeldi solicited were unwilling to take Emeldi
as a student for legitimate reasons, such as being unavailable
or unqualified to advise her research. If credited by the jury,
the University states legitimate, non-retaliatory reasons for
Horner’s resignation.
a relative lack of support and role models for female candidates. I mentioned the content issues in the [May 2007] Student Advisory Board
Memo and my concern about gender inequity of the faculty. I identified
the chair of my dissertation committee, Dr. Rob Horner, as being distant
and relatively inaccessible to me.”

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[16] But Emeldi has presented evidence from which a reasonable jury could conclude that the University’s account is
pretexutal. For substantially the same reasons we concluded
that Emeldi proffered sufficient evidence of causation, we
likewise conclude that Emeldi’s evidence is sufficient to show
pretext. See Farrell v. Planters Lifesavers Co., 206 F.3d 271,
286 (3d Cir. 2000) (explaining that the causation and pretext
inquiries are often overlapping). The proximity in time
between Emeldi’s complaints of unequal treatment and
Horner’s resignation as Emeldi’s dissertation chair; Friestad’s
admission that she relayed Emeldi’s complaints to Horner;
Horner’s resignation without providing assistance in securing
a replacement chair; other evidence of Horner’s gender-based
animus; Horner’s praise for Emeldi; and Emeldi’s inability to
secure a replacement dissertation chair, all considered
together, could lead a reasonable jury to conclude that
Emeldi’s complaints of unequal treatment, and not Horner’s
dissatisfaction with her research, motivated Horner’s resignation.7
7

The dissent parts company with the majority by concluding that there
is no genuine dispute of material fact as to whether the adverse actions
suffered by Emeldi were causally related to her complaints of institutional
gender bias or as to whether there was pretext. As we have noted, the dissent’s conclusions ignore traditional rules for applying Rule 56.
Specifically, the dissent complains that Emeldi did not provide other
evidence supporting her assertions. An example concerns Emeldi’s complaint that at Horner’s graduate student group meetings Emeldi was not on
the agenda or if on it her meaningful work was not discussed. These statements are not speculative but based on Emeldi’s personal knowledge and
would be admissible at trial. Emeldi had direct percipient knowledge of
what happened at the graduate student group meetings she attended. The
dissent argues there are no minutes in the record so one cannot verify their
substance, and that “there is no proffered testimony of other students or
faculty members to give credence to Emeldi’s perceptions that Horner was
slighting her (and presumably other women students).” But her declaration
that she “was publicly and chronically ignored in research team meetings
by Rob Horner” generates a genuine dispute of material fact. The dissent’s
insistence on corroborating testimony of others inserts into the law governing summary judgments a precondition that has never been recognized.
See SEC v. Phan, 500 F.3d 895, 910 (9th Cir. 2007) (holding that district

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[17] Because a reasonable jury could conclude from the
evidence presented at summary judgment that Horner’s resignation was gender-based retaliation, the district court erred in
granting summary judgment.
E
We pause to elaborate on the sufficiency of evidence that
Emeldi presented in response to the University’s motion for
summary judgment. When deciding whether an asserted evidentiary dispute is genuine, we inquire whether a jury could
reasonably find in the nonmovant’s favor from the evidence
presented. See Anderson, 477 U.S. at 251-52 (stating that
summary judgment requires determination of “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law”).
We cannot say that a reasonable jury would be compelled
to reject liability. We are mindful that the University has
offered evidence that would support a verdict in its favor. For
starters, the testimony of Horner and Friestad contradicts
Emeldi’s account, and emails corroborate the University’s
version of events. Making matters worse for Emeldi, her own
court erred in disregarding declarations as “uncorroborated and selfserving”); see also 10A Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 2727 (3d ed. 2011) (“[F]acts asserted by the party
opposing the motion [for summary judgment], if supported by affidavits
or other evidentiary material, are regarded as true.”). Like much of the dissent, this point goes to the weight of Emeldi’s evidence, not to its admissibility and sufficiency to withstand summary judgment.
The dissent characterizes as “speculative” Emeldi’s difficulties gaining
a replacement chair of her dissertation committee. But it is not speculative
for Emeldi to say that she asked fifteen faculty members who declined for
various reasons. A reasonable jury could infer that she was blackballed as
a troublemaker because of her claims of institutional gender bias in the
Ph.D. program.

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account at times may appear to be inconsistent. In deposition,
she testified that she “would be speculating” if she said why
she believed Horner’s resignation as her dissertation chair was
gender-based retaliation.8 Further, the record does not disclose
why, despite unsuccessfully soliciting fifteen faculty members, Emeldi overlooked two professors who, the University
says, were qualified and available to replace Horner as
Emeldi’s dissertation chair. All of this is to say that the University may have a convincing case at trial. However, that the
University has presented strong evidence in its defense does
not undermine our conclusion that there is a genuine dispute
of factual issues that requires resolution by a jury.
V
Emeldi also challenges federal subject-matter jurisdiction
over her case. The basis of her jurisdictional challenge is that
the University’s original notice of removal mistakenly said
that the action was filed in Linn and Multnomah Counties,
when in fact it was filed in Lane County. This error was corrected by an amended notice of removal, but Emeldi protests
that the amendment was untimely.
“[T]he propriety of removal is determined solely on the
basis of the pleadings filed in state court.” Williams v. Costco
Wholesale Corp., 471 F.3d 975, 976 (9th Cir. 2006) (per
curiam). Where, as here, the state court pleadings establish
federal jurisdiction, an obvious factual error in the notice of
removal is not fatal to jurisdiction. But even if the notice’s
8

While the University characterizes Emeldi’s answer as an admission
that she does not know whether Horner’s resignation was motivated by
retaliatory animus, we note that Emeldi clearly says, elsewhere in her
deposition, that she believes Horner’s conduct was gender-based retaliation. Emeldi might explain to a jury’s satisfaction her anomalous deposition comment in a way that would be consistent with the University’s
liability. Further, in light of the other evidence that we have noted, it
would be incorrect to view Emeldi’s word choice as conclusive against
her.

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mistaken listing of the county from which the case was
removed were fatal to jurisdiction, the University’s amendment would cure the defect. See Pochiro v. Prudential Ins.
Co. of Am., 827 F.2d 1246, 1248 (9th Cir. 1987) (holding that
insufficient verification of a notice of removal was not fatal
to jurisdiction because the technical error was later corrected
by amended notice).
VI
We reverse the district court’s grant of summary judgment
on Emeldi’s state law claim for the same reasons as Emeldi’s
Title IX claim.9 Also, we reverse the district court’s award of
costs because the University is no longer the prevailing party
under Federal Rule of Civil Procedure 54(d). See Cascade
Health Sol. v. PeaceHealth, 515 F.3d 883, 917 (9th Cir.
2008).
REVERSED and REMANDED.

FISHER, Circuit Judge, dissenting:
I generally agree with much of what my colleagues have to
say about extending the principles and jurisprudence developed under Title VII to the context of discrimination against
women in colleges and universities under the rubric of Title
IX. Ms. Emeldi, however, has not shown that the problems
she experienced in her Ph.D. program, and particularly with
her supervising faculty advisor, Dr. Horner, were the result of
gender discrimination rather than an unfortunate — but not
9

We need not decide whether, in the context of gender-based retaliation,
the state law cause of action is coextensive with Title IX. Because the district court granted summary judgment on Emeldi’s state law claim for the
same erroneous reasons as her Title IX claim, we need not decide the state
statute’s coverage.

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unlawful — breakdown in the academic relationship between
a master professor and a graduate student. The record plainly
reveals Emeldi’s frustration with her lack of progress on completing her Ph.D. studies and her dissertation, including problems she attributed to Horner as her dissertation chair. She
became so frustrated that she finally complained to University
administrators. She may have believed these problems and Dr.
Horner’s actions were caused by his bias against her as a
woman. But this is a retaliation case, where it is critical that
she present evidence from which a reasonable jury could find
that Horner (a) knew she believed him to be gender biased,
and (b) resigned in retaliation because she made such an allegation. She simply has not done so, no matter how sympathetic one might be to her academic disappointments.
We need to be cautious when transporting the doctrines that
govern the workplace into the university setting, where the
roles of student and teacher, especially in a Ph.D. program,
are so bound up in personal interactions and subjective judgments. To turn a falling out between a male professor and a
female doctoral candidate into a jury trial over the professor’s
alleged bias against women should not happen unless there is
good evidence to support the charge of discrimination based
on gender. Because Emeldi’s evidence has not met that
threshold, I respectfully dissent.
In sum, Emeldi relies almost entirely on her own speculation and conclusory allegations, without any supporting factual data. I do not believe she has provided sufficient evidence
of causation to make out a prima facie case of gender-based
retaliation. Even assuming she has made a prima facie case,
she has utterly failed to show that Horner’s stated reason for
resigning as her dissertation chair — that she had come to
view his role as her dissertation chair as “a barrier to her
advancement” — had anything to do with her being a woman
and was merely a pretext.

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I.

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Framework

The majority joins the First, Second and Tenth Circuits in
applying the Title VII framework to a Title IX retaliation
claim. Maj. Op. 3268 & n.2. I agree that this framework
should apply to Title IX retaliation cases arising in the
employment context. But extending the employment model
wholesale into the teacher-student context — particularly to
a graduate school Ph.D. program — is problematic because
these contexts differ in significant ways. The academic process involves highly personal, idiosyncratic relationships that
depend on various professional qualities. This is especially
the case for dissertation chairs and their Ph.D. students, which
are not run-of-the-mill relationships between managers and
employees. A dissertation chair must have expertise in the
student’s area of research as well as be someone with whom
the student can work closely, in a process that by its very
nature requires the professor to be highly critical of the student’s work and capabilities. The professor’s role as a dissertation chair is voluntary, unlike a business manager whose
very job is to supervise a group of subordinate employees. In
agreeing to supervise a student, a dissertation chair enters a
relationship where the responsibilities run both ways — the
student owes the professor time, intellectual commitment and
work product, and the dissertation chair implicitly agrees to
provide the same in the form of guidance and critical evaluation. Unlike the relationship between a manager and an
employee, each relationship in a Ph.D. program is inherently
unique and highly subjective. Of course, this does not mean
professors can be permitted to discriminate against students
because of their gender or other protected status, but we must
be careful not to open them up to claims of discrimination
based only on unsubstantiated allegations any time there is an
intellectual disagreement about a research project.
Despite these cautions, however, I will accept that we
should apply the Title VII framework to Emeldi’s Title IX
retaliation claims.

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II.

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Burden-Shifting

To establish a prima facie case of retaliation under Title
VII, and hence under Title IX, a plaintiff must prove (1) she
engaged in a protected activity; (2) she suffered an adverse
action; and (3) there was a causal connection between the
two. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108
(9th Cir. 2008). Once the plaintiff establishes a prima facie
case, the burden shifts to the defendant to set forth a legitimate, nonretaliatory reason for its actions. See id. If the defendant sets forth such a reason, the plaintiff bears the ultimate
burden of submitting evidence showing that the defendant’s
proffered reason is merely a pretext for a retaliatory motive.
See Nilsson v. City of Mesa, 503 F.3d 947, 954 (9th Cir.
2007).
Without accepting the majority’s reasoning, I will assume
that Emeldi has met the first two elements of a prima facie
case — that she engaged in a protected activity and suffered
an adverse action. She has not, however, shown enough to
require a jury to decide whether Professor Horner’s resignation as her dissertation chair was in retaliation for complaints
she made against him (and the University) of gender discrimination. I have trouble seeing how her largely subjective and
pervasive speculative interpretations of events are sufficient
to make a prima facie case of causation. But even assuming
she clears that hurdle, I think the University and Horner have
established a legitimate, nondiscriminatory explanation for
Horner’s resignation and Emeldi’s inability to find a replacement chair, and she has failed to present evidence from which
a reasonable jury could find it to be mere pretext. See Davis
v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).
Emeldi complains that Horner resigned as her dissertation
chair and also prevented her from finding a replacement so
she could complete her Ph.D.1 He did this, she contends,
1

The majority’s characterization of Horner as having “poisoned his colleagues against her,” Maj. Op. 3275, is especially hollow on this record.
See pp. 3295-96, infra.

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because she sent a memo to University officials that included
a criticism of the underrepresentation of women on the faculty, then later complained to other officials that Horner’s
treatment of her in class meetings and his supervision of her
thesis reflected his own bias against her as a woman. Horner
and the University vigorously deny these serious allegations
— that Horner was biased against women generally or specifically against Emeldi, and that at the time he resigned he even
knew that Emeldi thought he was. The majority concedes this
is a close case; but it concludes nonetheless that Emeldi has
shown enough to warrant a jury trial. Maj. Op. 3279-80. I
think not. The majority is too generous to Emeldi’s “evidence.” Notably, almost all of her proof of Horner’s gender
bias and retaliatory actions is based on her own suspicions
and speculation. She may in her own mind have believed her
problems were the result of gender bias. The issue, however,
is whether Horner was biased, knew she thought that and
retaliated against her for saying so. Tellingly, Emeldi has not
provided statements from other witnesses who might have
corroborated her speculation, particularly on factual issues
where one would expect her to have at least tried to find
someone who would support her theory of the case. She offers
no explanation or excuse — such as faculty or student witnesses who refused to cooperate by providing sworn statements, or the existence of some “code-of-silence.”
I acknowledge that this is a summary judgment appeal, and
we give substantial leeway to the plaintiff as the losing party
below. Nonetheless, it is well-settled that, “[w]hen the nonmoving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations
unsupported by factual data to create an issue of material
fact.” Hansen v. United States, 7 F.3d 137, 138 (9th Cir.
1993) (per curiam); see also United States ex rel. Cafasso v.
Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir.
2011) (Gould, J.) (“The evidence adduced by Cafasso establishes only that this set of events could conceivably have
occurred; it does not give rise to a reasonable inference that

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it did in fact occur. To find liability on this evidence would
require undue speculation. To survive summary judgment, a
plaintiff must set forth non-speculative evidence of specific
facts, not sweeping conclusory allegations.”); Head v. Glacier
Nw. Inc., 413 F.3d 1053, 1059 (9th Cir. 2005) (discussing the
“longstanding precedent that conclusory declarations are
insufficient to raise a question of material fact”).
Emeldi’s claims come up short for these very reasons. She
seeks to blame her failed Ph.D. dissertation effort on her master professor’s gender bias and retaliatory motive, transforming academic judgment calls into a civil rights violation. In
this context, I submit there is good reason to insist that the
student provide specific and substantial evidence — not just
speculation and circumstantial inferences that are not attested
to by others and, importantly, are inconsistent with the contemporaneous documentary record.
A brief review of the evidence the majority relies on, and
the University’s rebuttal, shows why.
1. May 2007 memo to Bullis. In May 2007, Emeldi wrote
a memo summarizing a meeting between several graduate students and Mike Bullis, the Dean of the College of Education.
ER 34-35. That memo, under the heading “Recommendations,” listed as one of many topics that had been discussed
the following bullet point:
Students request that qualified women be hired into
tenured faculty positions [emphasis]. Students
attempted and were unable to identify a current
female appointment to a tenured faculty position.
Students need to experience empowered female role
models successfully working within an academic
context [emphasis]. Doctoral students request that
the college model a balance of gender appointments
that reflect the proportion of student gender population ratios.

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SER 56 (brackets and bracketed text in original). This paragraph is the keystone of Emeldi’s claim that Horner resigned
in retaliation for Emeldi having complained to the University
about gender inequality. Horner, however, in uncontradicted
testimony states that he was never made aware of the contents
of Emeldi’s May 2007 memo before he resigned as her chair,
learning its contents only during this litigation. See SER 5-6,
24. Emeldi has provided no evidence of Horner’s actual
knowledge of the memo’s contents, particularly the gender
issue, before then. At most, she offers only uncorroborated
hearsay from an unidentified source that all faculty got copies
of the memo and, she says, its contents were “common
knowledge.” Maj. Op. 3264.
2. Meeting with Friestad and Bentz. The next critical piece
of evidence in Emeldi’s attempt to link Horner’s resignation
to gender discrimination is a meeting she had with University
administrators Marian Friestad and (possibly) Annie Bentz in
October 2007. ER 37.2 Emeldi says that after there had been
no response or follow-up to her earlier May memo, she
arranged the meeting:
regarding what I perceived to be relative lack of academic support and related diminishment of financial
support . . . to complete my doctoral degree problem.
I described one possible cause of that problem as an
institutional bias in favor of male doctoral candidates, and a relative lack of support and role models
for female candidates. I mentioned the content issues
in the Student Advisory Board Memo and my concern about gender inequity of the faculty. I identified
the chair of my dissertation committee, Dr. Rob
Horner, as being distant and relatively inaccessible
to me.
2

Neither party has submitted a declaration from Bentz.

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ER 28 (emphasis added). This is the whole of Emeldi’s proof
that sex discrimination was discussed and, more importantly,
of her supposed allegation of gender bias against Horner. She
then theorizes that Friestad told Horner about Emeldi’s allegation, triggering his resignation. Even assuming Emeldi’s
ambiguous characterization of Horner as being “distant and
relatively inaccessible” was meant as an accusation of gender
bias, Friestad certainly did not understand that to be the issue.
She denies that sex discrimination was discussed at all, much
less any accusations of such against Horner. SER 9 at ¶ 4.
Friestad’s account is supported by a contemporaneous document that further undermines Emeldi’s recollection of the
discussion. In connection with the meeting, Emeldi sent Friestad a memo entitled “Reference Information for Requested
Conflict Resolution Services,” which chronicled what Emeldi
obviously found to be a frustrating history with the Special
Education Doctoral program from 2004 to October 2007. See
Memorandum dated Oct. 18, 2007, dkt. #37-3. The memo
detailed perceived slights, lack of cooperation or response and
some disagreements or “conflicts” with various faculty members, including Horner in his capacity as chair of her dissertation committee and supervisor of her academic work. As the
memo’s “Introductory Comments” section states, however, it
was “not intended as a criticism of the faculty members discussed. It is intended to describe the series of conflicts that
have resulted in communication failures and the events that
have contributed to a lack of progress made in my program.”
Dkt. #37-3 at 14. Friestad says that was her understanding of
what the meeting was about, and reflects the nature of what
she and Emeldi actually discussed — “what might best be
termed as a series of perceived personality conflicts.” SER 9
at ¶ 4, SER 10. Critically, Friestad states that “Ms. Emeldi did
not discuss any issues related to sexual harassment or discrimination. Nor was there any inference [sic] or indication that
she was concerned about sexual harassment or discrimination
in the Memorandum.” SER 9 at ¶ 4. Reading Emeldi’s memo
confirms Friestad’s account and understanding.

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Although the evidence of a nonmoving party is to be
believed, and all justifiable inferences are to be drawn in her
favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986), “evidence in opposition to the motion that clearly is
without any force is insufficient to raise a genuine issue,” 10A
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2727 (3d ed. 2011). Emeldi’s “evidence” regarding what took place at the October 19 meeting appears to fall
into this category. Even if Emeldi’s claim that gender discrimination was discussed is credited, however, Emeldi offers only
speculation that Friestad informed Horner of any charges of
discrimination following the meeting.
3. Friestad phone call to Horner. The next critical link in
Emeldi’s chain of causation is Friestad’s phone call to Horner
sometime after the October 19 meeting. With Emeldi’s permission, Friestad called Horner to discuss Emeldi’s concerns
about her lack of progress in the doctoral program, including
Horner’s role in the delay. SER 10.3 Horner acknowledges the
phone call “with Marian Friestad in which she informed me
that Ms. Emeldi had filed a concern related to her moving forward.” SER 20. Freistad did not share with him the contents
of any documents; she “simply told me that there was a concern.” Id. Significantly, Emeldi’s counsel did not ask Horner
at his deposition whether Friestad mentioned gender bias.
And Friestad, as quoted above, denies that she and Emeldi
ever discussed gender discrimination at any of their meetings.
SER 8-11. On this record, there is no evidence that Horner
understood from the phone call that Emeldi’s “concerns”
about her progress and Horner’s role involved gender bias.
Equally important, although Horner readily acknowledges
that Emeldi’s concerns about him ultimately led to his resignation, he said his decision came only after receiving an email
3

Friestad asked Emeldi “at multiple points, including at the end of the
meeting, if she wanted [her] to contact Dr. Horner and discuss her concerns about her progress in the doctoral program. Ms. Emeldi gave [her]
permission to do so.” SER 9-10 at ¶ 5.

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memo from Emeldi on November 12, well after Friestad’s
phone call. SER 20-23.
4. Emeldi’s November 2007 memo/email exchanges with
Horner. Horner attributes his decision to resign as Emeldi’s
dissertation chair, and his timing, to a November 12 email
memo he received from Emeldi, see SER 63-68, “identifying
me as a barrier to her advancement and indicating that she
was concerned about my unwillingness to move her doctoral
committee forward”; “she was significantly concerned that I
was a barrier to her advancement. That is not a role I am interested in playing, therefore it seemed that the logical step was
for her to work with someone who would be able to promote
her objectives. I chose to stop being the chair of her dissertation committee.” SER 21-23.4 Horner’s description of the
lengthy and detailed memo is accurate; and — consistent with
Friestad’s account of her initial and subsequent meetings with
Emeldi — it contains no suggestion of gender discrimination.
Emeldi wrote to Horner, “Though support has been requested,
and you have acknowledged my patience in waiting for your
involvement, we have, to date, not collaborated to progress
my dissertation research forward.” SER 67. She continued,
“The extinction plan that’s been implemented over the last
year particularly has prevented me from accessing support in
weekly research meetings to progress dissertation prerequisite
and project work and from directly communicating, accessing
support, and collaborating with you, committee, and other
faculty members causing my program to be unnecessarily
extended.” Id. On November 19, Horner sent Emeldi the following email in response:
I am sorry you were unable to come to the research
meeting today, because I think it is important for us
to resolve the issues you frame in your message
without delay. . . . [¶ ] Your message is clear that
4

He noted that though he “chose to stop being the chair of her dissertation committee,” SER 23, he “stayed as her program advisor.” SER 21.

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you see my feedback as a barrier to your progress,
and not helpful in moving your dissertation forward.
[¶ ] I have great respect for your personal and professional judgement and I do not wish to be a barrier
to your advancement. [¶ ] At the same time, I think
we have differences in our view of your research
plan. [¶ ] After some serious thought, I believe the
most logical move is for you to work with an advisor
who is more in tune with your research vision. As
such I resign as of today as chair of your dissertation
committee.
SER 61-62. Significantly absent from this contemporaneous
documentary exchange between Emeldi and Horner (like
Emeldi’s memo to Friestad) is any hint of gender discrimination being at issue or having been surfaced. See SER 20-23;
see also dkt. #54. Rather, Horner describes the intellectual
and interpersonal conflicts that led to his resignation:
Ms. Emeldi developed a dissertation proposal but
was dissatisfied with my critiques about the scope
and substance of her proposal. In my judgment Ms.
Emeldi’s dissertation proposal was insufficiently
developed to allow presentation to a dissertation
committee. The conceptual foundation was not
established, and her methodology would not have
met the standards for a doctoral dissertation.
SER 5 at ¶ 2. Horner explains that Emeldi “did not respond
well to [my criticisms]. . . . [S]he resisted my suggestions, and
went to University administration complaining that I was an
obstacle to her progress.” SER 5 at ¶ 3.
I submit that, even making allowances for Emeldi’s need in
some instances to rely on circumstantial evidence, and giving
her the benefit of permissible inferences on summary judgment, there is nothing but speculation to supply the vital missing element in Emeldi’s gender discrimination claim: that the

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cause of and true reason for Horner’s resignation (and his
alleged undermining of finding a replacement chair) was
gender-based retaliation. Not only do Horner and Friestad
deny it, the documents created at the time corroborate them.
See Maj. Op. 3277. Nonetheless, leveraging off her disputed
complaint about Horner’s gender bias to Friestad, Emeldi now
theorizes that Horner’s resignation as her chair had to be
because Friestad reported that accusation in her call to
Horner. However, when asked why she believed Horner’s resignation was “gender based retaliation,” she candidly — and
correctly — replied, “I would be speculating. I think that’s a
question for Rob Horner.” SER 53. See Maj. Op. 3280 & n.8.
The majority, however, believes a jury should decide this
question. To justify allowing Emeldi to get that far, it cites
three items of “ample circumstantial evidence” to establish
causation and pretext. Maj. Op. 3274. The first and “strong”
circumstance is the proximity in time between Emeldi’s protected conduct — her assumed complaint of gender discrimination — and Horner’s resignation. Maj. Op. 3273 (citing
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1035
(9th Cir. 2006)). Of course, in Cornwell we held “the record
did not contain evidence that Sharp knew about Cornwell’s
complaint before Sharp demoted him, and thus Cornwell’s
complaint could not have caused Cornwell’s demotion.”
Cornwell, 439 F.3d at 1035. Likewise, that is the record here.
Emeldi has no evidence that Horner had any idea she was
accusing him of gender discrimination.
To close this evidentiary gap, the majority credits Emeldi’s
“theory” on appeal of how Horner learned of her supposed
gender-bias complaints about him. In her brief to this court,
Emeldi speculates that “[a]s soon as [she] left the discussion
with Friestad, [Friestad] called Horner and told him that
[Emeldi] had accused him of discriminating against her.” Bl.
Br. 6. She contends that because of that contact, Horner
resigned as her dissertation chair “that very day.” Bl. Br. 23.

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In fact, events did not move anywhere near that fast.5 As documented by the record, Horner resigned on November 19,
after receiving Emeldi’s long email memo on November 12.
See SER 21. As noted above, the Emeldi-Friestad meeting
was on October 19, with the Friestad-Horner phone call
occurring shortly after. The evidence shows that almost a
month intervened between the call and Horner’s resignation,
during which time Horner and Emeldi had rather extensive
email contacts, providing a contemporaneous documentary
record that confirms Horner’s nonpretextual explanation for
his resignation.
Regardless of the timeline, Horner does not dispute that he
resigned because of Emeldi’s complaints about delays in her
dissertation’s progress — as relayed in general terms by Friestad and supplemented by Emeldi’s email memo. But he does
dispute — and there is no credible objective evidence to the
contrary — that his resignation had anything to do with her
being a woman rather than a grad student who had come to
view him as a “barrier to her advancement.” SER 21.
The majority tries to bolster Emeldi’s case by citing to
Horner’s supposed acts of gender bias “in other contexts,” all
of which are anecdotal, based largely on hearsay and unsupported other than by Emeldi’s own accounts. Maj. Op.
3264-65, 3274-75. For example, the majority credits Emeldi’s
assertion “that Horner gave more attention and support to
male students and that he ignored her and did not make eye
contact with her.” Maj. Op. 3274.6
The majority also credits Emeldi’s complaint that when she
5

Emeldi’s counsel’s willingness to exaggerate the documented facts
undermines the credibility of counsel and his client.
6
The majority cites only Emeldi’s own speculative statement of facts in
opposition to the University’s motion for summary judgment, ER 36, and
her statements in the Notice of Grievance, dkt. #53 at 27-28, which she
filed against Horner on January 16, 2008, two months after his resignation.

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attended Horner’s graduate student group meetings, she was
“not on the agenda,” or when she was on the agenda, none of
her “substantial/meaningful work” was discussed. Maj. Op.
3274. Once again, there is no proffered testimony of other students or faculty members to give credence to Emeldi’s perceptions that Horner was slighting her (and presumably other
women students). The majority excuses this shortcoming
because Emeldi “had direct percipient knowledge of what
happened at the graduate student group meetings she attended.” Op. at 3278 n.7. But this misses the point. She and the
majority rely on these “facts” to prove Horner’s actual
gender-biased behavior — discrimination that took place not
in one-on-one dealings between Horner and Emeldi where it
would have to be a “he said, she said” dispute, but in front of
many potential witnesses. Summary judgment standards do
not require us to turn a blind eye to Emeldi’s failure to make
her affirmative case or to rebut the defendants’ nonpretextual
explanations with anything other than her own characterizations and perceptions.
This failure is particularly troubling with respect to what
the majority invokes as Emeldi’s “specific examples of
Horner’s male students being given opportunities that were
not available to his female students,” such as access to office
space and technology. Maj. Op. 3274. The majority refers
only to Emeldi’s declaration; Emeldi cites nothing at all. She
describes favorable treatment given to four specified male students, and names a female professor and a female student,
both of whom she says complained of “subordinating” and
“derogatory” treatment resulting from this disparity. Dkt. #74
at 16-18. She also says these disparities were “observed by
doctoral students interviewed for the Student Advisory Board
Memo.” Id. at 16. But she does not offer declarations from
any of these sources, or any direct evidence of Jason Naranjo’s premature “assist[ance] to get a tenure-track position,”
Scott Ross’ “three office spaces” and “number of palm pilots”
or Scott Yamamoto’s “several opportunities to work on
research projects.” Id. at 16-17. This evidence, which Emeldi

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has not bothered to corroborate, is too anecdotal and lacking
in specific evidentiary support to raise any reasonable inference that Horner was gender biased and actively discriminated between his male and female students.
Perhaps the most glaring example of Emeldi’s speculative
accusations, credited by the majority as supportive “other evidence” of Horner’s retaliatory intent, Maj. Op. 3274-75,
relates to her inability to secure a replacement chair despite
asking 15 faculty members — which she attributes to
Horner’s gender-based animus against her. The majority cites
Emeldi’s contention that after his resignation, Horner “told
other Department faculty members that Emeldi should not be
granted a Ph.D., and should instead be directed into the Ed.D.
program, which Emeldi says is a less prestigious degree.”
Maj. Op. 3266.
Other than Emeldi’s own speculation and hearsay, neither
of which can establish a disputed issue of material fact, the
evidence that this statement was made is nonexistent. The
“evidence” is actually the excerpt of record Emeldi submitted
in this appeal (ER 37-38), which in turn is the statement of
facts Emeldi submitted in opposition to the University’s summary judgment motion in the district court. There Emeldi
stated: “Horner announced to other faculty . . . that plaintiff
should not be granted a Ph.D. degree but should be directed
into a program for the lesser Ed.D. degree. Horner has never
discussed that change with plaintiff.” ER 37-38. As support,
she cites to her own declaration, in which she alleges, “[there
was a] November 27, 2007 faculty meeting in which [Horner]
advocated that I obtain a[ ] D.Ed. rather than a Ph.D. . . . Professor Cindy Herr described this statement by Horner to me
immediately after it occurred, but I had never heard such a
suggestion previously from Horner or anyone else.” Dkt. #54
at 8. Where is the corroboration from Cindy Herr? All we
have is a two-page excerpt of Herr’s deposition. See dkt. #562. Nowhere does Herr testify that Horner made these statements, nor does she testify that she told Emeldi that Horner

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made these statements. Indeed, nothing in Herr’s excerpted
testimony refers to the Ed.D. program, a faculty meeting or
even Horner at all. Emeldi’s failure to ask Herr to confirm her
alleged statement to Emeldi discredits the accusation against
Horner as completely unfounded and certainly not “material
to Emeldi’s retaliation claim.”
I am sympathetic to the majority’s belief that the University
could have done more for Emeldi in helping her find a
replacement. See Maj. Op. 3266. That does not establish gender discrimination as the motivation for Horner’s actions or
the University’s shortcomings, however. To posit, as the
majority does, that she was unable to secure a replacement
chair because Horner “poisoned” his colleagues against her is
simply not credible on this record. Maj. Op. 3275. Not only
has Emeldi failed to support Herr’s alleged statement, she has
presented no evidence from (or about) any of the 15 faculty
members she asked, or from anyone else, suggesting that
Horner did anything to dissuade them from acting as her
chair. Rather, emails she placed in the record show that those
she asked declined for a number of legitimate reasons: they
did not believe they had the appropriate specialization to
oversee her research; they were already overextended with
other projects; they were ineligible to serve as chairs due to
University policies. One was hesitant to make a commitment
due to health issues. One had moved to Kansas. Another was
retired. See dkt. #48 at 16-26. Further, these emails show that
many of the faculty members offered to meet with her to discuss her project, and then wished her well when they determined they were unable to serve as her chair. Some referred
her to other faculty members, and several volunteered to serve
on her dissertation committee. These are not responses one
would expect from colleagues who had been “poisoned.” And
equally notable, as the majority concedes, “the record does
not disclose why, despite unsuccessfully soliciting fifteen faculty members, Emeldi overlooked two professors who, the
University says, were qualified and available to replace
Horner as Emeldi’s dissertation chair.” Maj. Op. 3280.

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Finally, the majority uses Horner’s earlier praise for
Emeldi’s work as evidence that his explanation for resignation
is pretextual. See Maj. Op. 3275. To do so seems a pure Catch
22. Had Horner never praised Emeldi, undoubtedly she (and
the majority) would cite that as evidence of his longstanding,
persistent gender bias. Horner praised Emeldi’s work at various points in their relationship, but he also critiqued her work,
as the majority itself notes. See Maj. Op. 3265 n.1, 3275 n.5.
One would expect nothing less from a dissertation committee
chair. Part of the chair’s role is to offer the student advice and
criticism on her dissertation’s weaknesses as well as
strengths, as well as on her own academic performance. That
Horner did just that does not show that his stated reason for
resigning as her advisor after she told him he was “a barrier
to her advancement” was pretextual. SER 21.7
In sum, Emeldi’s case should fail because she has not
shown enough to warrant a jury’s finding causation. But even
if we give her the benefit of doubt on that requirement, she
certainly has not shown enough to rebut as mere pretext
Horner’s reason for resigning as her dissertation chair. The
evidence, including Friestad and Horner’s testimony and
Emeldi’s own documented complaints, makes it clear that
Horner’s nondiscriminatory explanation was genuine: he
resigned as dissertation chair because of intellectual and interpersonal incompatabilities with his Ph.D. candidate. Emeldi’s
unsupported statements and speculation do not overcome this
evidence, and she has not offered corroborative evidence that
7

In his declaration, Horner describes criticism he gave Emeldi leading
up to his resignation: “In my judgment Ms. Emeldi’s dissertation proposal
was insufficiently developed to allow presentation to a dissertation committee. The conceptual foundation was not established, and her methodology would not have met the standards for a doctoral dissertation. I pointed
these and other issues out to her in a memo I wrote to her on September
7, 2009 . . . . I informed her that she was not yet ready to call her dissertation committee together because her proposal was not yet functional.”
SER 5 at ¶ 2.

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was available to her that would create triable issues of causation and pretext. We should not allow this case to go forward.
Title IX’s worthy antidiscrimination objectives notwithstanding, to let Ms. Emeldi’s claims go to a jury will serve
only as a precedent-setting example of how little it takes to
turn a failed supervisory relationship between a professor and
his Ph.D. candidate into a federal case of gender discrimination. The district court properly granted summary judgment.
I respectfully dissent.