Pavel v. University of Oregon et al

Filing 107

OPINION AND ORDER: Defendants' second motion for summary judgment 79 is GRANTED as to all of plaintiff's claims. Defendants' motion for attorney's fees is DENIED. Signed on 3/13/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

CHIXAPKAID DONALD MICHAEL
PAVEL,

Case No. 6:16-cv-00819-AA
OPINION AND ORDER

Plaintiff,
vs.
UNIVERSITY OF OREGON; DOUG
BLANDY; PENELOPE DAUGHERTY;
and RANDY KAMPHAUS,
Defendants.

AIKEN, Judge:
Plaintiff CHIXapkaid Pavel asse1ts various claims related to the termination of his
employment against defendants University of Oregon, Doug Blandy (the University's Senior
Vice Provost for Academic Affairs), Penelope Daughe1ty (the University's Director of
Affirmative Action & Equal Opp01tunity), and Randy Kamphaus (the University's Dean of the

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College of Education). 1 Plaintiff alleges defendants violated his rights under federal
discrimination statutes, the Due Process Clause, and the First Amendment. I previously entered
summary judgment in defendants' favor on plaintiffs Due Process Clause claims, and
defendants now move for summary judgment on plaintiffs remaining claims.
Oral argument on this motion was held on November 29, 2017, at 10:00 a.m. For the
reasons set fotih below, I GRANT defendants' second motion for summary judgment (doc. 79).

BACKGROUND
Plaintiff was a tenured professor at the University of Oregon's College of Education from
September 16, 2010, until the University of Oregon ("the University") terminated his
employment contract on January 21, 2015, in response to a student's sexual harassment
complaint. At all relevant times, plaintiff was a member of the United Academics of the
University of Oregon, American Association of University Professors - American Federation of
Teachers, AFL-CIO, ("the Union") and the terms of his employment were governed by the
collective bargaining agreement ("the CBA") between the University and the Union. At the time
of his termination, plaintiff was the senior Native American faculty member and the only Native
American full professor at the University. He was also the first tenured professor at the
University to be fired for sexual harassment.
On November 15, 2014, Janne Underriner, the University's Director of the Northwest
Indian Language Institute, received a complaint about plaintiffs conduct at a University event
the previous night. The initial complaint came via a phone call from the father of a first-semester
freshman student. Two days later, in a private interview with the University of Oregon's Office
of Affirmative Action and Equal Oppo1iunity ("OAAEO"), the student explained that she knew
1

Plaintiff initially named several additional University employees as defendants, but he
stipulated to their dismissal in June 2017.
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plaintiff because he was a close family friend involved in her tribal community. She had been in
touch with him several times before she began courses at the University. At the November 14
event, the student approached plaintiff to say hello and took a photo with him. She alleged that
plaintiff asked her to go into the hallway and talk, because he found it difficult to hear in the
crowded main event space. The hallway was lined with mhTOrs. The student stated that plaintiff,
who seemed to be intoxicated, got close to her face and told her to turn and look at herself in one
of the mirrors. The student alleged that plaintiff put his right arm around her and turned to her
face the mirror; while they looked in the min-or together, he told her she was "beautiful" and that
all the boys were "drooling" over her. Dugan Deel. Ex. A at 9. The student repotied that plaintiff
then kissed one of her hands, pulled her close to him, kissed her cheek and forehead in a nonplatonic manner, tubbed her back, and moved his hand down past her waist to rest on her butt.
When she attempted to leave the interaction, plaintiff allegedly followed her into an elevator,
stood behind her, and touched her dress and underwear when the other elevator passengers were
facing the exit doors and could not see what he was doing. The student did not want plaintiff to
touch her in the way that he did and felt extremely uncomfotiable throughout the interaction.
The University placed plaintiff on administrative leave while it investigated the student's
claim. The formal investigation launched on November 20, 2014. On November 21, 2014,
plaintiff learned the university had placed him on leave.
In an interview with OAAEO, plaintiff denied the substance of the student's allegations
and reported that he was "surprised, shocked and discouraged" by the allegations. Id at 17. The
were no eyewitnesses to most of the interaction, but OAEEO interviewed another student who
corroborated some parts of the complainant's story. OAEEO also interviewed faculty, including
Underriner, who repotied that the interaction negatively affected the student academically,

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including by causing her to change her area of study so she would not have to take classes taught
by plaintiff.
OAEEO's investigatory file also documents a complaint, filed tlu·ee years earlier by a
Ph.D. student, that plaintiff had subjected that student to "inappropriate and unwelcome sexual
attention." Id at 18. This included inappropriate touching, including "tight hugs," touching the
student's knee repeatedly during conversation, and even poking her in the belly button "as a
joke." Id at 53. The student rep01ied that, on a work-related trip, the situation escalated when
plaintiff stopped in front of a display window and turned the student toward the window. After
telling the student to close her eyes, plaintiff allegedly put his hand on his shoulder and then
moved it along her arm to her waist. He then turned the student toward him, making her think he
was about to kiss her. The student expressly told plaintiff that she was interested only in a
professional relationship; he responded by telling her that many students tell him they want to
work as pati of his research team when, in fact, those students are simply attempting to get close
to him because they are sexually attracted to him. After that conversation, plaintiff told the
student he no longer knew how to act around her, suggested they might have to correspond only
electronically, and once again touched the student's knee during a conversation, at which point
the student told plaintiff she no longer wished to work with him. That earlier complaint resulted
in counseling but not in any soti of formal discipline.
On December 18, 2014, Anne Bonner and defendant Penny Daugherty from OAAEO sat
down with plaintiff and union representative Debra Merskin to discuss the investigation. At the
meeting, Daugherty and Bonner relayed their suspicion that plaintiff had engaged in a pattern of
sexual harassment, and interviewed him to collect additional information regarding the
accusations. Merskin characterized the tone of the meeting as passive-aggressive, disrespectful,

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hostile, and accusatory. She fmiher stated that, in her experience, OAAEO always approaches
investigations in that aggressive manner-as though the investigated faculty member's guilt
were a foregone conclusion. After the meeting, Daugherty told plaintiff that he was free to
provide any additional evidence or documentation by January 6, 2015. Plaintiff believed he did
not have time to adequately respond, so he never submitted any additional evidence.
At the conclusion of the University's investigation, plaintiff and Merskin met with
various staff members on January 16, 2015, to discuss the University's findings. Patiicipating
staff members included defendants Doug Blandy and Randy Kamphaus. The University found
by a preponderance of the evidence that plaintiff violated its sexual harassment policy and
interfered with students' rights to equal access to education. Specifically, the University found
that the plaintiff "engaged in unwelcome verbal and physical conduct of a sexual nature" that
included touching a student's back, buttocks, and underwear. Blandy Deel. Ex. 3 at 1. The
University also found that plaintiff made "[i]nappropriate comments of a sexual nature" and
remarked "on the student's appearance after having her stand in front of a mirror." Id. These
findings were presented to plaintiff in writing. Plaintiff had the oppotiunity to respond but made
no comments during the meeting.
At the January 16 meeting, the University also notified plaintiff it intended to terminate
their employment relationship on January 21, 2015. The University gave plaintiff until January
20, 2015, to submit any written response or relevant evidence to change the termination decision.
Plaintiff never replied with any additional testimony or evidence. Instead, plaintiff responded
with a request for more information. The University did not comply with plaintiffs request.

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January 16 meeting was the first time plaintiff learned that the university contemplated
terminating him. 2
On May 5, 2015, plaintiff grieved his termination under the CBA. On February 22, 2016,
the University offered plaintiff the opp01tunity to engage in arbitration under the CBA. Had the
arbitration proceeded, plaintiff would have been able to "call witnesses, offer exhibits, and make
arguments" that the University did not fire him for just cause. Brady Deel.

~

4 (doc. 39).

Plaintiffs union withdrew from the arbitration and as such, plaintiff never received a posttermination hearing. 3
STANDARD OF REVIEW

Summary judgment is appropriate if "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving
party has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence ofa genuine

2

Defendants challenge this asse1tion on the basis that plaintiff does not support the
statement in his declaration with personal knowledge, rendering his lay witness testimony
inadmissible under Federal Rules of Evidence 602 and 701. See Orr v. Bank of Am., NT & SA,
285 F.3d 764, 773 (9th Cir. 2002) ("A trial court can only consider admissible evidence in ruling
on a motion for summary judgment."). Similarly, Federal Rule of Civil Procedure 56(c)(4)
requires that affidavits be based on personal knowledge to carry weight on a motion for summary
judgment. The testimony at issue speaks directly to plaintiffs awareness of the University's
intent to fire him. See Fed. R. Evid. 701 (permitting lay witnesses to testify if the testimony is
"rationally based on the witness's perception"). His statement therefore may be considered as
part of the summary judgment record.
3

The Union's decision not to proceed to arbitration was a critical consideration to my
decision to grant the University summary judgment on plaintiffs due process claims. Although I
found that Merskin' s declaration raised a triable issue of fact as to actual bias in the pretermination decisionmaking process, I concluded that the individual defendants were entitled to
qualified immunity because "case law does not clearly establish that a pre-termination process
requires unbiased arbiters when plaintiff has access to a robust pre-termination arbitration under
his collective bargaining agreement." Pavel v. Univ. of Or., 2017 WL 1827706, *11 (D. Or. May
3, 2017).
Page 6 - OPINION AND ORDER

issue of material fact, the nonmoving paiiy must go beyond the pleadings and identify facts
which show a genuine issue for trial. Celotex, 477 U.S. at 324. "Summary judgment is
inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could
return a verdict in the nonmoving patiy's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d
1201, 1207 (9th Cir. 2008).
DISCUSSION

This case comes at a unique moment. For years, allegations of sexual assault and
harassment have been swept under the rug when they instead should have been taken seriously,
investigated, and decisively acted upon. As a glance at any news source shows, that is changing.
The current national discussion revolves daily around allegations of sexual assault and
harassment, and what institutions, communities, and governments should do, or should have
done, to respond and protect the vulnerable.
At the same time, issues of race are coming to the fore in a similar long-overdue manner.
The impacts of our shameful racial history, pervasive implicit bias, and institutionalized racism
are now pati of any meaningful discussion on social or institutional responsibility in America
today. Norms on both fronts are in flux in dramatic ways, not just within progressive segments of
society, but across the nation as whole.
The pressure facing institutions, particularly universities, to deal swiftly, seriously, and
correctly with allegations of sexual assault is rightfully high, because the stakes for both victim
and accused are also incredibly high. In such an environment, as the pendulum swings away
from a position it has occupied for so long, shifting presumptions and burdens of proof, it is
liable to take out many in its path. It is of no small concern that those most likely to experience

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the detrimental impacts from any unfair application of these new priorities will be people of
color.
Historically and cun-ently, people of color shoulder disproportionate shares of
punishment. See, e.g., Demographic Differences in Sentencing: An Update to the 2012 Booker
Repmi (U.S. Sentencing Commission Nov. 2017) (reporting that, in the federal system, black
male offenders receive sentences on average 19 .1 percent longer than similarly situated white
male offenders). People of color are also dispropo1iionately the victims of sexual harassment.

See, e.g., Tanya Kateri Hernandez, Sexual Harassment and Racial Disparity: The Mutual
Construction of Gender and Race, 4 Gender Race & Just. 183, 184-85 (2001) (surveying EEOC
sexual harassment complaint data). A debate rages over whether the shifts in how we deal with
campus sexual assault and harassment will disproportionately harm men of color. Compare, e.g.,
Antuan M. Johnson, Title IX Narratives, lntersectionality, and Male-Based Conceptions of

Racism, 9 Geo. J. Law & Mod. Crit. Race Persp. 57, 59 (2017) ("There is a history of race being
used as a political tool to shut down conversations about sexual assault, even when it directly
affects black women.") with, e.g., Janet Halley, Trading the Megaphone for the Gavel in Title IX

Enforcement, 128 Harv. L. Rev. F. 103, 109 (2015) ("To the extent that the campus-sexualassault movement expresses the priorities and visions of white middle-class women, it may not
be providing us with everything we need to know to make fair decisions in cases involving class,
race, and other key differences.")
It is well established that implicit bias affects almost every decision that people make.

See, e.g., Justin D. Levinson et al., Judging Implicit Bias: A National Empirical Study ofJudicial
Stereotypes, 69 Fla. L. Rev. 63, 79-82 (Jan. 2017). I would be remiss if I failed to acknowledge
that such bias has wide-ranging impacts on institutional processes as a whole. As impo1iant

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decisions are made, both on the grand scale and within the microcosm of individual situations,
we must be mindful of the ever-present risk of perpetuating longstanding racial injustice. It is
critical to change the way we respond to sexual harassment and assault, but members of minority
communities must not be sacrificed as patt of a knee-jerk reaction to political pressure to deal
harshly with allegations of a sexual nature.
Here, I am presented with an individual case in which a Native American professor was
fired after a student accused him of sexual harassment. I cannot adjudicate plaintiffs claims as a
way of advancing my own views of how best to resolve the broad policy concerns outlined
above; I am constrained to make a ruling based on the evidence presented in this case. Here, the
evidence falls short of the necessary threshold to proceed to trial.
I.

Employment Discrimination Claims: Race Discrimination

Plaintiff alleges that defendants fired him at least in part because he is Native American.
He uses two vehicles to asse1t his race discrimination claims: (1) a claim, asserted via 42 U.S.C.

§ 1983, that individual defendants violated 42 U.S.C. § 1981, which prohibits racial
discrimination in the formulation (or termination) of contracts, and (2) a claim that the
University violated Title VII of the Civil Rights Act, which prohibits racial discrimination in
making employment decisions. Here, those two claims can be analyzed together. To establish
race discrimination under Title VII, a. plaintiff must offer evidence that gives rise to "an
inference of discrimination in whatever manner is appropriate in the particular circumstances."
Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010). The legal principles that

guide "a court in a Title VII dispute apply with equal force in a § 1981 action." Reynaga v.
Roseberg Forest Prod, 847 F.3d 678, 696 (9th Cir. 2017).

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Plaintiff asserts that the hostile treatment that he received from the University, and the
University's more favorable treatment of other similarly situated professors, is evidence of
discriminatory motive behind his firing. Defendants move for summary judgment on these
claims, arguing that plaintiff cannot establish a prima facie case of race discrimination, and even
if he could, he does not rebut the University's legitimate, non-discriminatory reason for
terminating his employment.
"To show a prima facie case of disparate treatment, a plaintiff must offer evidence that
'give[ s] rise to an inference of unlawful discrimination."' Reynaga, 847 F.3d at 690 (quoting
Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1110 (9th Cir. 1991 )).

One way to establish an inference of discrimination is by satisfying the prima
facie elements from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 ...
(1973): (I) the plaintiff belongs to a protected class, (2) he was performing
according to his employer's legitimate expectations, (3) he suffered an adverse
employment action, and (4) similarly situated employees were treated more
favorably, or other circumstances surrounding the adverse employment action
give rise to an inference of discrimination.
Id. at 690-91 (citing Hawn, 615 F.3d at 1156 and Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,

1220 (9th Cir. 1998)). At the summary judgment stage, the nonmoving party's burden is very
low; a plaintiff may simply produce direct or circumstantial evidence demonstrating that a
discriminatory reason 'more likely than not motivated' the employer." Id at 691.
The parties do not dispute that plaintiff belongs to a protected class as a racial minority,
that he was performing according to his employer's legitimate expectations prior to the events
that precipitated this action, and that plaintiff suffered an adverse employment action when he
was terminated from his job at the University. Plaintiff's primary argument is that similarly
situated white employees were treated more favorably than he was. To that end, plaintiff has
presented evidence about other tenured professors who have had formal and informal sexual

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harassment complaints filed against them. The evidence presented shows that such complaints
were filed against nineteen professors, plus plaintiff. All but one of the complaints were filed
against men. 4 Four cases were closed as unfounded. Ten of the professors do not meet the
"similarly situated" test because the complained-of conduct was substantially less serious than
the conduct at issue in plaintiffs case: those professors each received only one complaint, which
included no allegations of physical contact. The five remaining professors are a closer match for
plaintiffs situation because they, like plaintiff, (1) had multiple complaints in their files, (2)
were accused of inappropriate physical contact, or (3) both. Of these five professors, three were
nonwhite (Black, Asian, and South-East Asian/Pacific Islander), and two were white. 5
Before proceeding to discuss the specific circumstances of the complaints against the five
most similarly situated professors, I address two of defendants' arguments about comparator
evidence. First, defendants make much of the difference between formal and informal
complaints. A formal complaint triggers a formal investigation and can result in formal
discipline, whereas an informal complaint is resolved using "an informal process [that] would

4

Defendants also move for summary judgment on plaintiffs gender discrimination
claim, which he asserts again the University under Title VII of the Civil Rights Act. There is no
evidence in the record of any similarly situated woman being treated more favorably than
plaintiff, nor is there evidence that any decisionmaker took gender into account when
considering whether to terminate plaintiff. Plaintiff also submits no argument on this point.
Plaintiffs gender discrimination claim fails because there is no evidence, circumstantial or
otherwise, to give rise to an inference of gender discrimination.
5

When plaintiff is included in the group, four of the six arguably similarly situated
professors were nonwhite. The fact that two thirds of a certain type of complaint are filed against
professors who are racial minorities could be evidence that students and co-workers report sexual
harassment by nonwhite professors at rates disproportionate to their representation in the
faculty-which could, in turn, affect how a governmental actor should respond to such
complaints. However, a sample size of six is simply too small to supp01t any conclusions about
complaint trends. I must instead look at the circumstances of each complaint filed in order to
determine whether any similarly situated professor was treated more favorably than plaintiff.

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not result in a finding" of misconduct and thus cannot end in termination. Walkup Deel. Ex. 1 at

5-6, Sept. 19, 2017. Classification of the complaint as formal or informal rests with the
complainant and is umelated to the severity of the alleged conduct. As a result, I do not find the
distinction between formal and informal complaints to carry much evidentiary weight, if any. It
is the content of the complaint that matters most. A professor informally accused of
inappropriately touching a student, for example, would be more similarly situated to plaintiff
than a professor formally accused of yelling at a student in class.
Second, the University notes that plaintiff was the first professor against whom a formal
complaint was lodged following the renegotiation of the faculty's union contract in 2013. They
asse1i that due to those changes, I should not consider evidence involving any complaint filed
against a tenured faculty member before 2013. I agree that changes to disciplinary procedures
under the contract might be relevant to assessing evidence of discriminatory intent. But I reject
defendants' attempts to draw a line in the sand, cutting off any pre-2013 comparator evidence.
I now proceed to address the pmiicular circumstances of each of the five possible
comparator professors. One nonwhite professor ("Professor #1") 6 was accused in an informal
and a formal complaint of making inappropriate sexual comments in class, and after an
investigation found those accusations were true, he was given an official letter of reprimand.
Another nonwhite professor ("Professor #2") was also accused in an informal and a formal
complaint of inappropriate behavior such as comments of a sexual nature, discriminating against
women in his workplace and classroom, and asking a former graduate student what she would
say if he expressed romantic interest in her. When the former student rebuffed Professor #2, he
made no fu1iher advances. Nonetheless, Professor #2 was given an official letter of reprimand,

6

I have assigned the professors pseudonymous numbers.

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suspended without pay for one semester, ordered to do additional training, and warned that he
could be terminated upon the next occurrence. An anonymous repoti also alleged a possible
physical relationship between Professor #2 and a mal1'ied graduate student, however this report
was neither corroborated by the student in question nor substantiated by other evidence.
The third nonwhite professor ("Professor #3") was accused once in a formal complaint of
making unwanted verbal and physical advances towards a student. The unwanted physical
contact consisted of kissing the student on the neck and touching her arms. According to
documents in the summary judgment record, because this was the first time this professor had
been accused of sexual harassment and because there were unique circumstances, including a
possible prior relationship with the complainant, Professor #3 was given a letter of reprimand,
suspended without pay for a semester, ordered to do additional training, and warned that he
could be terminated upon the next occml'ence.
A fourth professor ("Professor #4"), a white man, was accused in an informal complaint
of touching a student's hands, telling her she was beautiful, putting his hands on her hips, and
asking to see her again. The student told him she was not interested in anything more than a
student-teacher relationship, and he apologized for his advances and did nothing futiher. His
discipline involved an informal resolution with the student in question and a warning. TlU'ee
years later, there was a different anonymous informal report of unknown content that also
resulted in an informal resolution.
The most analogous situation involves the fifth professor ("Professor #5"), a white man.
Professor #5 was accused in a formal complaint (which actually consisted of several complaints
in one) of verbally sexually harassing several students, retaliating against students for rejecting
his advances, and making unwanted contact of a sexual nature with a student when he picked up

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an item out of her lap and brushed his hand past her breast. After an investigation, he was
notified that he would be terminated, but before his termination date, he resigned to avoid being
fired. The University accepted his resignation on the condition that he abide by the University's
non-retaliation policy, never serve in any capacity at any future campus functions, projects, or
events, and never attend certain non-public events at the University. The University's
communications with Professor #5 made it clear that if he had not resigned, he would have been
terminated, and despite his voluntary spontaneous retirement, he was severely restricted from
participation in the University in the future. He did not simply retire in good standing, but had
ongoing restrictions applied to him.
Plaintiff was accused of sexual harassment in two informal complaints, the most recent
one initiated by a mandatory reporter upon receiving notice of the incident at issue. The student
involved in the incident that was the subject of the second informal complaint then decided to
file a formal complaint. The student was a first-semester freshman who accused plaintiff of
touching her, including on her buttocks and underwear; kissing her on her hand, cheek, and
forehead; and making inappropriate comments of a sexual nature, according to OAAEO
investigatory records and a police report that she filed to that effect. After an investigation, the
University concluded the student's allegations were true.
The level of physical touching founded against plaintiff after an investigation makes this
incident with plaintiff objectively different from the verbal misconduct founded against
Professors # 1 and #2. The complaints against Professors #3 and #4 were first-time complaints,
unlike the instant complaint against plaintiff.
The University's treatment of Professor #5 was substantially similar to its treatment of
plaintiff despite the fact that the accusations against the Professor #5, the white man who

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resigned, were as severe as (or perhaps even more severe than) those against plaintiff. Professor
#5 was told that he was going to be terminated, just as plaintiff was. Plaintiff had four days,
including weekends, in which to decide what to do between the time he was notified of his
impending termination and when the termination actually occurred. Similarly, Professor #5 had
somewhere between one and thitteen days, including weekends, between when he was notified
that he would be terminated and when he submitted his resignation. When the University
accepted Professor #5' s resignation, they did so only on the condition that he refrain from
participating in future University functions, not serve as a teacher or mentor to University
students, and abide by a number of other rules and restrictions. There is no indication that the
University expressly offered retirement to Professor #5 to help him avoid discipline. Indeed,
plaintiff also received forewarning of his impending termination, and could have resigned during
that time had he chosen to do so.
Critically, unlike Professor #5, plaintiff had already been counseled in the past for
substantially similar alleged acts. The circumstances of the rep01t that precipitated plaintiffs
termination were analogous to those of the 2011 complaint filed against plaintiff by a different
female student. The investigation of the instant case took into consideration the fact that
plaintiffs previous discipline had included extensive counseling, warnings, and education about
appropriate professor-student relationships, boundaries, and physical contact. The investigation
rep01t indicated that informal methods of counseling and disciplining plaintiff had already been
tried and had been unsuccessful at preventing this new incident.
In sum, the evidence shows that plaintiff was similarly situated to only one of the other
professors, Professor #5, and that both plaintiff and Professor #5 were subjected to similar
discipline despite their different races. Therefore, evidence does not exist in the record from

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which a reasonable jury could conclude that other similarly situated tenured professors in an
unprotected class were treated more favorably by the University than was plaintiff.
Additionally, there is no evidence, circumstantial or otherwise, in the record that any of
those involved with the decision to terminate plaintiffs employment were influenced by racial
bias. While plaintiff presents significant evidence that he was not well-liked by some faculty,
including defendant Doug Blandy who was responsible for deciding whether to terminate
plaintiffs employment, none of that evidence suppmis an inference of racial discrimination. 7
Similarly, although there is evidence OAAOE was aggressive and disrespectful during the
meetings with plaintiff, there is no indication that aggression was a response to plaintiffs race;
indeed, Merskin stated that OAAOE treats all accused faculty members in the same fashion. In
fact, plaintiffs case for racial discrimination appears to arise almost entirely from the premise
that because plaintiff is an openly American Indian male, the decision to terminate him was
necessarily made in pa11 for that reason, and that the circumstance of his being an openly
American Indian male who was not well-liked by some colleagues is sufficient evidence thereof.
"[V]ery little evidence" is required to survive a motion for summary judgment on a race
discrimination claim. Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996).
However, very little evidence is still some evidence. Here, there is simply no evidence in the
record from which a reasonable jury could infer race discrimination.
II.

First Amendment Retaliation Claim
Plaintiff next contends that he was terminated in retaliation for speaking out against the

firing of Dr. Ball, a fellow Native American professor at the University, in violation of plaintiffs

7

Plaintiff concedes that he has "no information or evidence showing that Dr. Blandy's
decision to terminate [him] was driven by [his) race" or gender. Pavel Dep. Vol. 3, 72:1-10. (doc.
80 at 25).
Page 16- OPINION AND ORDER

First Amendment right to engage in free speech. Specifically, plaintiff alleges that Jason
Younker, the University's Assistant Vice President and Advisor to the President, was hostile
towards plaintiff because of plaintiff's speech, and that Younker was later interviewed as part of
the University's investigation of the allegations against plaintiff, thereby participating in a
retaliatory action against plaintiff. Defendants move for summary judgment on the basis that
plaintiff has not put forth any evidence that his statements were a substantial or motivating factor
in his firing, contending that the evidence shows the University fired plaintiff for violating its
sexual harassment policy.
The Ninth Circuit has established a five-step test for First Amendment employment
retaliation claims. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Courts analyzing such
claims must ask:
(!) whether the plaintiff spoke on a matter of public concern; (2) whether the
plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's
protected speech was a substantial or motivating factor in the adverse
employment action; (4) whether the state had an adequate justification for treating
the employee differently from other members of the general public; and (5)
whether the state would have taken the adverse employment action even absent
the protected speech.

Id. Here, there are two groups of potentially protected speech at .issue: statements plaintiff made
in 2012 and statements plaintiff made in 2014.

i.

2012 Statements

In 2012, plaintiff spoke out against the firing of Dr. Ball, a Native American professor at
the University. According to plaintiff, he spoke on this issue of public concern as a member of
the community rather than in his capacity as a state employee. It is not necessary to decide
whether plaintiff's statements met the public concern and private citizen tests, because there is
insufficient evidence of causation. After plaintiff spoke out in meetings and other venues for

Page 17 - OPINION AND ORDER

several months, two years went by until the events that precipitated this case, during which time
plaintiff does not claim adverse employment actions were taken against him. I recognize that, as
a practical matter, institutional memory can be long, and individuals may not forget exercises of
free speech rights that they disagreed with, going back two, four, or ten years. However, as a
matter of law, a temporal proximity of two years between the protected activity and the adverse
employment action, by itself, is not enough to demonstrate a discriminatory purpose. Clark Cty.

Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001); Keyser v. Sacramento City Unified Sch.
Dist., 265 F.3d 741, 752 (9th Cir. 2001). Here, other evidence indicating a causal link between
the 2012 speech and the 2015 firing is not present in the record.
ii.

2014 Statements

Younker was hired in 2014. At that time, plaintiff again expressed his beliefthat Dr. Ball
should not have been fired and that his firing should now be handled in a patticular way by the
University, including with an apology and a ceremony. Younker did not follow plaintiffs
recommendation, but explained that he was handling the situation in a different manner and,
according to plaintiff, expressed understanding that plaintiff might be uncomfortable because he
had worked with Dr. Ball.
Plaintiff argues that there is a link between the 2012 statements and the 2014 statements
because Younker was hired to fill a position created in part to replace Dr. Ball's previous job.
Plaintiff also points to circumstantial evidence that Younker was not cordial with plaintiff,
changed his mind about suppotting plaintiffs proposal for a scholarship program, and stated that
the sexual harassment allegations against plaintiff were widely known.
Whether the plaintiffs protected speech was a substantial or motivating factor in
defendants' decision to fire him is a question of fact. Eng, 552 F.3d at 1071. Plaintiff here has

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not alleged facts sufficient for a reasonable jury to find that his speech was a motivating factor in
defendants' decision to fire him. Although plaintiff alleges some facts which, if true, tend to
demonstrate that Younker did not like plaintiff, there are several gaps in the facts and
circumstances that prevent them from being sufficient for plaintiffs purpose here.
First, "[comis] have recognized previously that, in some cases, causation can be inferred
from timing alone where an adverse employment action follows on the heels of protected
activity." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). However,
here, three months passed between plaintiffs most recent arguably protected speech and the
initiation of the investigation of the sexual harassment complaint against plaintiff. Plaintiff does
not claim any adverse employment actions against him during these three months; rather, the
adverse employment action at issue occurred after a student repo11ed an incident of sexual
harassment, and filed a police repo11 and then a complaint with the University, spurring an
investigation. When an employer puts fotih a legitimate reason for the adverse employment
action, a temporal proximity of three months is by itself insufficient circumstantial evidence to
defeat a motion for summary judgment. See Erickson v. Pierce Cty., 960 F.2d 801, 803 (9th Cir.
1992) (court granted summary judgment for employer where there was temporal proximity of
three months between employer learning of employee's protected actions and that employee's
firing).
Secondly, even if Younker did not like plaintiffs statements about Dr. Ball, that fact is of
only ancillary relevance. Younker did not conduct the investigation, give input to the
decisionmakers during the formal investigation, or make the decision to fire plaintiff. Younker's
role consisted of accompanying the complainant to her initial interview before the investigation
began, upon her request. Further, when asked by a University OAAEO investigator if he had any

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more information about the incident, the repo1t, or other concerns, or anyone else who might
have such information, Younker conveyed in a one-sentence email that the complainant's father
had told him that plaintiff assaulted someone in Washington. When viewed in the light most
favorable to plaintiff, this is evidence that at most Younker responded to requests as they arose in
a way that was unhelpful to and unsupportive of plaintiff. It is not, however, sufficient evidence
upon which a reasonable jury could find that Younker retaliated against plaintiff for speaking out
against Dr. Ball's termination.
Even if plaintiff spoke on a matter of public concern as a private citizen when he opposed
the decision to fire Dr. Ball, there is simply insufficient evidence in the record to support the
inference that plaintiff's protected speech was a substantial or motivating factor in his
termination. Plaintiff further does not refute defendants' claim that the University would have
terminated his employment for violating the sexual harassment policy, even absent the protected
speech. His claim therefore cannot survive defendants' motion for summary judgment.
III.

Employment Discrimination Claims: Pretext
If a plaintiff establishes a prima facie case of discrimination or retaliation, the burden

then shifts to the defendant employer to aiticulate a legitimate, non-discriminatory reason for the
adverse employment action. Chuang v. Univ. of Cal. Davis, Bd. o/Trs., 225 F.3d 1115, 1123-24
(9th Cir. 2000), Hawn, 615 F.3d at 1155. For the reasons explained above, a pretext analysis is
not necessary because plaintiff has failed to make out a prima facie case of either discrimination
or retaliation. Even if plaintiff had met his prima facie burden, however, summary judgment
would be warranted because there is insufficient evidence of pretext.

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Defendants assert that they terminated plaintiff because he violated the sexual harassment
policy by subjecting a female student to nonconsensual contact and comments of a sexual nature,
as established after an investigation.
Defendants' burden of proof here is low.
The defendant need not persuade the court that it was actually motivated by the
proffered reasons. It is sufficient ifthe defendant's evidence raises a genuine issue
of fact as to whether it discriminated against the plaintiff. To accomplish this, the
defendant must clearly set forth, tlu·ough the introduction of admissible evidence,
the reasons for the plaintiff's rejection. The explanation provided must be legally
sufficient to justify a judgment for the defendant. If the defendant carries this
burden of production, the presumption raised by the prima facie case is
rebutted ....
Texas Dep 't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (internal citations omitted). If
defendant meets this burden, plaintiffs must then raise a triable issue of material fact as to
whether the defendant's proffered reasons for their terminations are mere pretext for unlawful
discrimination. Hawn, 615 F.3d at 1155.
"[A] plaintiff's burden is much less at the prima facie stage than at the pretext stage."
Hawn, 615 F.3d at 1158. In order to get past summary judgment, even after proving a prima
facie case of discrimination and employment retaliation, plaintiff must present specific,
substantial evidence of pretext that will survive rigorous examination. Steck! v. Motorola, Inc.,
703 F.2d 392, 393 (9th Cir.1983).
Evidence of pretext could take many forms. McDonnell Douglas, 411 U.S. at 804-05.
For example, the manner in which the plaintiff was treated by his employer during
his employment may be relevant to a showing of pretext. Additionally, the fact
that persons outside the plaintiff's protected class were treated better for offenses
of comparable seriousness could also help demonstrate pretext. . . . [W]hether
summary judgment is appropriate depends on a number of factors, including the
strength of the plaintiff's prima facie case and the probative value of the proof
that the employer's explanation is false.

Page 21 - OPINION AND ORDER

Reynaga, 847 F.3d at 694 (internal citations omitted). "To establish pretext, 'very little' direct

evidence of discriminatory motive is sufficient, but if circumstantial evidence is offered, such
evidence has to be 'specific' and 'substantial."' Winarto v. Toshiba Am. Elecs. Components, Inc.,
274 FJd 1276, 1284 (9th Cir. 2001) (citing Godwin v. Hunt Wesson Inc., 150 F.3d 1217, 1220
(9th Cir.1998)).
Here, such evidence has not been presented. Plaintiff argues that the fact that the
University did not fire other tenured professors who had sexual harassment complaints filed
against them demonstrates that the University deviated from normal practice by treating plaintiff
differently than other similarly situated professors. However, as discussed above, the evidence
does not show that the University treated any professors outside of the plaintiffs protected class
better in response to comparably serious allegations.
There is further no evidence to link the manner in which plaintiff was treated by the
University to racial or gender bias. Plaintiffs statements that he is an openly American Indian
man are helpful to establish the first element of the prima facie case, that plaintiff is a known or
perceived member of a protected class; but "other circumstances" must be shown to demonstrate
the final element, an inference of discrimination. McDonnell Douglas, 411 U.S. at 802 (1973).
At the pretext stage of summary judgment, those other circumstances must be specific and
substantial in order to rebut the University's legitimate reason for firing plaintiff. Winarto, 274
FJd at 1284. Here, neither direct evidence nor specific and substantial circumstantial evidence
of pretext has been submitted.
In sum, plaintiff has not carried his burden to make out a prima facie case for
discrimination or retaliation. Moreover, even if plaintiff had made out a prima facie case, his

Page 22 - OPINION AND ORDER

evidence falls short of the stringent burden to create a question of material fact regarding
whether defendants' reason for firing him was false. 8
IV.

Attorney's Fees

Defendants move for an award of reasonable attorney's fees pursuant to 42 U.S.C. §
2000e-5(k) and 42 U.S.C. § 1988. Award of attorney's fees is at the Court's discretion. See 42
U.S.C. § 1988 ("In any action or proceeding to enforce a provision of sections 1981 ... [or]
1983 ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney's
fee .... "); id § 2000e-5 (same).
"[C]ourts are permitted to award attorney's fees to prevailing plaintiffe as a matter of
course, but are permitted to award attorney's fees to prevailing defendants under 42 U.S.C. §§
1988 and 2000e-5(k) ... only in exceptional circumstances." Harris v. Maricopa Cty. Super.
Ct., 631 F.3d 963, 971 (9th Cir. 2011) (citation and internal quotation marks omitted). "In a civil

rights case, fees may be awarded against an unsuccessful plaintiff only if his action is 'meritless
in the sense that it is groundless or without foundation.'" Mitchell v. L.A. C!nty. Coll. Dist., 861
F.2d 198, 202 (9th Cir. 1988) (citing Hughes v. Rowe, 449 U.S. 5, 14, (1980)) and Dooley v.
Reiss, 736 F.2d 1392, 1396 (9th Cir. 1984)).

Here, the claims that plaintiff brought were not "groundless or without foundation"
merely because they were not successful. See Mitchell v. Office of L.A. Cty., 805 F.2d 844, 847
(9th Cir. 1986). Plaintiff extensively briefed facts, circumstances, and law supporting his claims,
provided evidence, and indicated that he anticipated discovering fmiher evidence. For these
reasons, defendants' motion for attorney's fees is denied.

8

Plaintiff concedes that the "[U]niversity's determination that [he] had sexually harassed
a freshman female undergraduate student play[ed a] role in its decision" to fire him. Pavel Dep.
Vol. 3, 72:6-10 (doc. 80 at 21).
Page 23 - OPINION AND ORDER

CONCLUSION

Defendants' second motion for summary judgment (doc. 79) is GRANTED as to all of
plaintiff's claims. Defendants' motion for attorney's fees is DENIED.
IT IS SO ORDERED.

1o:db1
Dated this_/.:;_;~_ day of March, 2018.

Ann Aiken
United States District Judge

Page 24 - OPINION AND ORDER