Pavel v. University of Oregon et al

Filing 73

ORDER AND OPINION: Granting Motion for Partial Summary Judgment 35 ). See, formal Opinion. Signed on 5/3/2017 by Judge Ann L. Aiken. (ck)

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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,

v.
UNIVERSITY OF OREGON; DOUG BLANDY;
PENELOPE DAUGHTERY; ANNIE BENTZ;
RANDY KAMPHAUS; JULIET A. BAXTER;
JANNE UNDERRINER; JASON YOUNKER;
and BRIAN KLOPOTEK,
Defendants.

AIKEN, Judge:
INTRODUCTION

Plaintiff CH!Xapkaid Pavel asserts various claims related to the termination of his
employment against defendants University of Oregon and various individuals. Plaintiff alleges
defendants violated his rights under federal employment discrimination statutes, the Due Process
Clause, and the First Amendment.

Individual defendants-{;omprised of the eight public

employees but not the University of Oregon-only move for summary judgment on plaintiffs

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procedural and substantive due process claims. For the reasons set out below, the Court grants
defendants' motion for summary judgment (doc. 35).

BACKGROUND
Plaintiff was a tenured professor at the University of Oregon's College of Education from
September 16, 2010, until the University of Oregon terminated his employment contract on
Januaty 21, 2015. Pl.'s Am. Comp!.

if 4 (doc. 28).

Plaintiffs termination followed a series of

complaints that plaintiff made unwelcomed and nonconsensual contact and comments of a sexual
nature to val'ious students. See Blandy Dep. 28:9-21 (doc. 54-1).
Of particular note is the formal grievance a student filed with the University of Oregon's
Office of Affirmative Action and Equal Opportunity (OAAEO) on November 17, 2017.
Daugherty Deel. Ex. 2 (doc. 38). After the University of Oregon received the student's report,
the university placed plaintiff on administrative leave while it investigated the student's claim.

Id. Plaintiff learned the university had placed him on leave a few days later on November 21,
2014. Pavel Deel. if 3 (doc. 52).
On December 18, 2014, Penny Daugherty and Anne Bonner from OAAEO sat down with
plaintiff and union representative Debra Merskin to discuss the investigation. Id.

if 4.

At that

meeting, Ms. Daughetty and Ms. Bonner relayed their suspicion that plaintiff appeared to engage
in a pattern of sexual harassment and interviewed him to collect additional information regarding
the accusations. Id.

if 6.

After the meeting, Ms. Daughetty assured plaintiff that he was free to

provide any additional evidence or documentation so long as he provided it by January 6, 2015.
Daugherty Deel.

if 4.

Plaintiff never submitted any additional evidence.

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At the conclusion of the university's investigation, plaintiff and Ms. Merskin met with
various staff members on January 16, 2015 to discuss the university's findings. Blandy Deel.~ 4
(doc. 37). Participating staff included defendants Senior Vice Provost for Academic Affairs
Doug Blandy and Dean of the College of Education Randy Kamphaus. Pavel Deel.

~

10 (doc.

52). 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. Id.

~

5;

Blandy Deel. Ex. 3 at I. More specifically, the university found that 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 plaintiff
made "[i]nappropriate comments of a sexual nature" and remarked "on the student's appearance
after having her stand in front of a miirnr." Id These findings were presented to plaintiff in
writing.

Id.

Plaintiff had the opportunity to respond, but made no comments during that

meeting. Blandy Deel.

~

6.

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.
Blandy Deel. Ex. 3 at 2; Merskin Deel.

~

5 (doc. 53); Pavel Deel. i110. Plaintiff never replied

with any additional evidence or testimony. Pavel Dep. 171:6-23 (doc. 65). Instead, plaintiff
responded with a request for more information. Pavel Deel. Ex. A at 1-2. The university did not

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comply with plaintiffs request. Pavel Deel. if 7. Plaintiff avers the Januaiy 16 meeting was the
first time he learned that the university contemplated terminating him. 1 Id.

if 10.

On May 5, 2015, plaintiff grieved his termination under his collective bargaining
agreement. Brady Deel. if 4 (doc. 39). On Februa1y 22, 2016, the university offered plaintiff the
oppo1tunity to engage in arbitration under the collective bargaining agreement. Id. 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. Id. Plaintiffs union withdrew
from the arbitration and as such, plaintiff could not proceed with arbitration and never received a
post-termination hearing. Id. at if 4 & Ex. 5; Merskin Deel. if 11.
STANDARD

Summary judgment is appropriate when the evidence shows "there is no genuine issue as
to any material fact and ... the moving patty is entitled to judgment as a matter of law." Celotex
C01p. v. Catrett, 477 U.S. 317, 322 (1986). The patty moving for summary judgment must first

identify the patts of the record "which it believes demonstrate the absence of a genuine issue of
material fact." Fed. Trade Comm 'n v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009) (quotation
marks omitted). Shou Id the moving patty meet this initial burden, "the burden shifts to the non-

1

Defendants challenge plaintiffs assertion on the basis that plaintiff does not suppott 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 comt 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 must be based on personal knowledge to carry weight on a motion for
summary judgment. Plaintiffs testimony at issue speaks directly to his awareness of the
university's intent to fire him. Fed. R. Evid. 701 (pe1mitting 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.
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moving pmty to set fo1th ... specific facts showing that there is a genuine issue for trial." Id. at
928. On a motion for summary judgment, a court views "the evidence in a light most favorable
to the non-moving party[.]" Id. at 927. A claim will survive summary judgment if there is
"evidence on which the jmy could reasonably find for the plaintiff.

The judge's inquiry,

therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the
evidence that the plaintiff is entitled to a verdict[.]" Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
DISCUSSION

Defendants move for partial summary judgment, arguing that a reasonable jury could not
find a procedural or a substantive due process violation based on the record before the Comt.
Even if there is a genuine dispute over material fact, defendants argue they deserve qualified
immunity on plaintiffs procedural and substantive due process claims.
I.

Procedural Due Process

a.

lvlerits

The Due Process Clause of the Fourteenth Amendment provides that no state shall
"deprive any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, § 1. "Procedural due process rules are meant to protect persons not from the
deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." Carey

v. Piphus, 435 U.S. 247, 259 (I 978). "A procedural due process claim has two distinct elements:
(1) a deprivation of a constitutionally protected libe1ty or property interest, and (2) a denial of

adequate procedural protections." Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149
F.3d 971, 982 (9th Cir. 1998).

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The parties do not dispute that plaintiff has a protected prope1ty interest in his continued
employment because he was a tenured professor pursuant to a collective bargaining agreement
that provides employees will only be fired for just cause. See Blantz v. Cal. Dep 't of Corr. &
Rehab., 727 F.3d 917, 921 (9th Cir. 2013) ("[G]overnment employees can have a protected

prope1ty interest in their continued employment if they have a legitimate claim to tenure or ifthe
terms of the employment make it clear that the employee can be fired only for cause.")
(emphasis omitted).
Unlike rigid legal rules, "due process is flexible and calls for such procedural protections
as the pmticular situation demands." lvforrissey v. Brewer, 408 U.S. 471, 481 (1972). "The base
requirement of the Due Process Clause is that a person deprived of prope1ty be given an
opportunity to be heard 'at a meaningful time and in a meaningful manner."' Brewster, 149 F.3d
at 984 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)); see Clements v. Airport Auth. of
Washoe Cnty., 69 F.3d 321, 332 (9th Cir. 1995) ("The essential requirements of this pre-

termination process are notice and an oppo1tunity to respond.") (emphasis omitted). Moreover,
comts are slow to find "trial-type proceedings are ... constitutionally required" because "an
agency has broad discretion in choosing the form of the proceeding that it will conduct." ASSE
Int'/, Inc. v. Kerry, 803 F.3d 1059, 1075 (9th Cir. 2015).

In the public employee context, generally government employers must provide "some
kind of hearing prior to the discharge of an employee who has a constitutionally protected
prope1ty interest in his employment." Cleveland Bd. of Education v. Loudermill, 470 U.S. 532,
542 (1985) (internal quotation marks omitted). In most cases, the employer complies with
procedural due process' pre-deprivation hearing requirements when the employer provides the

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employee "oral or written notice of the charges against him, an explanation of the employer's
evidence, and an oppo1tunity to present his side of the story." Id. at 545. The hearing "need not
be elaborate" because it does not need to "definitively resolve the propriety of the discharge" or
approximate a trial-like proceeding.

Id.; see Gilbert v. Hamar, 520 U.S. 924, 929 (1997)

(explaining "that a public employee dismissable only for cause was entitled to a ve1y limited
hearing prior to his termination, to be followed by a more comprehensive post-te1mination
hearing") (emphasis added).

Therefore, the pre-termination hearing need only serve as an

"initial check" to ensure the employee's discharge is "reasonable," Gilbert, 520 U.S. at 929
(quoting Loudermill, 470 U.S. at 545-46, and not "baseless or unwarranted," id. at 531 (quoting

Fed. Deposit Ins. C01p. v. Mallen, 486 U.S. 230, 240 (1988)); see also Clements, 69 F.3d at 333
n.15 ("A pre-termination hearing ... does not constitute an 'adjudication."'). Moreover, courts
are more likely to hold a meager pre-termination process satisfied due process if the employer
provides a robust post-termination process.

Brewster, 149 F.3d 971, 986 (9th Cir. 1998)

(explaining "meager" pre-deprivation hearing satisfies due process); see generally Loudermill,
470 U.S. at 546 (warning that to require robust pre-termination procedures "would intrude to an
unwarranted extent on the government's interest in quickly removing an unsatisfactory
employee").
To determine whether a public employer offered an employee adequate process under the
Fomteenth Amendment, courts must weigh three factors.
First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.
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Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

Under the first factor, a plaintiffs interest in continued employment as a tenured
employee is substantial and weighs in favor of requiring defendants to offer procedural
safeguards. Loudermill, 470 U.S. at 543 ("[T]he significance of the private interest in retaining
employment cannot be gainsaid" because of the "severity of depriving a person of the means of
livelihood"); see Gilbert, 520 U.S. at 932 (explaining the length and finality of the deprivation
affect coutts' determination as to how much process is due). The first factor also considers the
ultimate hardship plaintiff suffers because of the deprivation and not merely the size of the
deprivation. See Matthews, 424 U.S. at 342 (explaining that "the possibility of access to private
resources" and "other forms of government assistance" could justify fewer procedural
protections before a deprivation).

However, where post-termination process could provide

plaintiff with reinstatement and back pay for an erroneous termination, the first factor does not
weigh as strongly in favor of more process. Cf id. at 340; see also Brady Deel. Ex 1 at 53 & 56
(stating that back pay, back benefits, and reinstatement are available under the collective
bargaining agreement if an employee prevails in arbitration).
In an employment dispute, the third factor also usually weighs in favor of a more robust
process. In a wrongful termination case, "some opportunity for the employee to present his side
of the case is recurringly of obvious value in reaching an accurate decision" because such cases
"often involve factual disputes." Loudermill, 470 U.S. at 543; see id. ("Even where the facts are
clear, the appropriateness or necessity of the discharge may not be[.]"). However, the mere fact
that the employer could later recant its discipline does not make out a procedural due process
violation. lYfackey v. Montrym, 443 U.S. l, 13 (I 979) ("The Due Process Clause simply does not
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mandate that all governmental decision[-]making comply with standards that assure perfect,
error-free determinations."). This is particularly so because "the Government has a much freer
hand in dealing with citizen employees than it does when it brings its sovereign power to bear on
citizens at large." Heidt v. City ofMCJ\1innvi/le, 2015 WL 9484484, at *6 (D. Or. Dec. 29, 2015)
(quoting NASA v. Nelson, 562 U.S. 134, 148 (2011)) (internal quotation marks omitted).
The weight of the third factor can shift when the defendant has unusually strong interests
in speedy action. When a case involves a highly visible public employees whose job depends
upon public trust, employers may under certain circumstances impose adverse employment
actions without any pre-deprivation process. Gilbert, 520 U.S. at 930 ("[W]here a State must act
quickly, or where it would be impractical to provide predeprivation process, postdeprivation
process satisfies the requirements of the Due Process Clause").
The Ninth Circuit held a fired teacher deserved no process before he was suspended
without pay in Mustafa v. Clark County School District, 157 F.3d 1169, 1177 (9th Cir. 1998).
There, a student filed a police rep01t that charged the plaintiff with "Open and Gross Lewdness"
that involved sexual misconduct. Id. at 1172. Four days later, the defendant school district
suspended the plaintiff without pay. Id The superintendent also recommended that the school
board should quickly terminate the plaintiff. Id. The following week, the defendant offered a
pre-termination hearing so the plaintiff could explain his side of the story. Id. at 1173. There
was also a subsequent arbitration.

Id Even though the defendant ultimately reinstated the

plaintiff because the student's charge could not be substantiated, the defendant did not violate
procedural due process by suspending the plaintiff without any pre-deprivation process. Id. at
1177. The Ninth Circuit explained that because "the employee 'occupie[d] a position of great

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public trust and high public visibility,'" the defendant offer[ed] a reasonably prompt postdeprivation hearing, and assurance exist[ed] that the defendant ha[d] "reasonable grounds" to
suppo1t its decision, pre-deprivation process was unnecessary because the need for speedy action
outweighed concerns of an e1rnneous deprivation. Id. at 1177 (quoting Gilbert, 520 U.S. at 932).
The Supreme Court has held that an employer may have no constitutional obligation to
provide pre-suspension process when "an independent third party has determined that there is
probable cause to believe the employee committed a serious crime[,]" such as when the plaintiff
is arrested and formally charged. Gilbert, 520 U.S. at 934. In _Mustafa, the plaintiff was neither
arrested nor charged; however, the student filed a police repmt which, combined with the
defendant's conversation with the student, provided sufficient assurance that the defendant had
reasonable and not arbitrary grounds for the adverse employment action. lYlustafa, 157 F.3d at

1177. In that case, the need for preserving public confidence in the school, compounded with the
assurances ofreasonableness provided by the student's complaint and defendant's investigation,
outweighed the risk of erroneous deprivation.

A1ustafa and Gilbert do not control the analysis here because they concerned the right to
pre-deprivation process before suspension without pay, not the right to pre-deprivation process
before termination. These cases do, however, illustrate how an employer's pressing need to take
action can affect the Mathews balancing test. Here, the university's interest in protecting student
safety, maintaining public confidence, avoiding Title IX liability, and minimizing the disruption
to students' education are weighty and considerable. Further, like in lYfustafa, defendants relied
on a student complaint and an internal investigation before making the termination decision.
Therefore, considering the totality of the circumstances, the Comt finds the third factor weighs

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heavily in favor of upholding the university's process as constitutionally adequate so long as it
provided plaintiff the basic pre-termination protections of notice and an opportunity to present
his side of the story.
Having concluded that the first Matthews factor favors more process and the third
lvfatthews factor favors upholding the process provided as adequate, the Court turns to the second

factor. The second factor is the "most impottant" because it considers "the risk of erroneous
deprivation and the likely value of any additional procedures." Gilbert, 520 U.S. at 933. On this
point, plaintiff points to a number of alleged deficiencies in the process. Specifically, plaintiff
argues that (I) he was unfairly surprised by the university's decision to terminate his
employment because he did not know the university considered the discipline before his January
16 meeting and did not have a meaningful opportunity to respond before the sho1t January 20
deadline; (2) he could not view the original copies of the student complaints against him and had
to rely on oral representations of the complaints; and (3) defendants' hostility is evidence that
they predetermined the outcome of the process, thereby denying plaintiff any meaningful
oppottunity to be heard.2

2

Plaintiff makes two other arguments that defendants violated plaintiffs procedural due process
rights. First, plaintiff suggests the post-termination process was inadequate because his union
withdrew from arbitration and defendants never offered a name-clearing hearing. However,
these circumstances do not give rise to a due process claim. First, arbitrations can serve as a
constitutionally sufficient substitute for a name-clearing hearing. Mustafa, 157 F.3d at 1179.
Second, although it is certainly understandable that plaintiff is angry he was denied the right to
participate in arbitration, that denial stems from actions taken by the union, not by defendants.
Any claim plaintiff has regarding his ability to participate in arbitration, therefore, must be a
claim against plaintiffs union for potentially shirking its fiduciary duties to represent its
members in good faith. See Armstrong v. lvfeyers, 964 F .2d 948, 951 (9th Cir. 1992) (holding
that the availability of arbitration can satisfy due process even if the union's decision prevents an
employee from actually participating in arbitration); see also Vaca v. Sipes, 386 U.S. 171, 190
(1967) (explaining unions' duties to collective bargaining unit members under the Fair Labor
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First, plaintiff argues that defendants violated his procedural due process rights by not
giving him sufficient notice that the university considered terminating their employment
relationship. In order to satisfy procedural due process' "low" notice requirements, defendants
must take "reasonably calculated" steps to "apprise interested parties of the pendency of the
action and afford them an opportunity to present their objection." Espinosa v. United Student
Aid Funds, Inc., 553 F.3d 1193, 1202 (9th Cir.2008) (quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)). As such, mere notice of the charges against an employee
will not suffice. See 1Vfatthews v. Harney Cnty. Sch. Dist. No. 4, 819 F.2d 889, 893 (9th Cir.
1987) (holding that a public employer violates due process if the termination comes before the
employee "was ever aware that her job was in jeopardy"). Notice that the university specifically
contemplated firing plaintiff is an essential part of due process because plaintiff must be given an
opportunity to "present reasons ... why a proposed action should not be taken should not be
taken." Novak v. United States, 795 F.3d 1012, 1023 (9th Cir. 2015) (quoting Loudermill, 470
U.S. at 546) (emphasis added and alterations normalized).
Defendants persuasively argue notice is constitutionally adequate because they informed
plaintiff about the impending termination on January 16, five days before it took effect, and
Relations Act). This is consistent with precedent explaining that a plaintiff's decision to
voluntarily withdraw from process offered does not manufacture a procedural due process claim.
Peacockv. Bd. of Regents ofUnivs. & State Coll. ofAriz., 597 F.2d 163, 166 (9th Cir. 1979).
Second, plaintiff argues that because defendants are unable to establish that they appropriately
fired plaintiff for just cause under the collective bargaining agreement, defendants violated
plaintiff's procedural due process rights. It is true that plaintiff's collective bargaining
agreement creates the protected property interest that triggers procedural due process protections
here, but that does not mean the collective bargaining agreement determines what process was
constitutionally due. If plaintiff "believes his termination was in breach of contract, his recourse
lies in a breach of contract claim, not in a procedural due process claim." Servo v. Junginger,
2014 WL 3891751, at *12 (D. Or. Aug. 6, 2014).
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plaintiff could submit additional evidence or testimony until January 20. Defendants did not owe
a duty to notify plaintiff that they were considering his termination before they finished their
investigation. See Loudermill, 470 U.S. at 543 (explaining that notice and "some opportunity" to
rebut the charge before the termination is effective satisfy procedural due process). Plaintiff
does not dispute he was fully aware of the university's intent to fire him before the termination
took effect and as such, cannot reasonably argue he did not receive notice of the termination.
Plaintiff contends the notice was constitutionally inadequate because the university gave
him too short a period to provide additional information. Plaintiff characterizes defendants'
deadline as unreasonable since it only provided plaintiff with one full business day to respond.
Defendants notified plaintiff of the termination decision on January 16, a Friday. Although
plaintiff had four days to respond to the decision, those four days included a weekend and a
holiday (Martin Luther King, Jr. Day.)
Defendants rejoin that plaintiffs' sham affidavit fails to raise a genuine dispute over
material fact that he had sufficient time to respond meaningfully. See Kennedy v. Allied lvfut.
Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) ("The general rule in the Ninth Circuit is that a party
cannot create an issue of fact by an affidavit that contradicting his prior deposition testimony"
because summary judgment loses its utility if comts cannot screen out sham issues of fact).
Defendants explain that even though plaintiffs declaration proffered that he did not have
sufficient opportunity to respond, plaintiff recognized in a deposition that defendants offered him
some opportunity after receiving the termination notice on January 16. Walkup Deel. Ex. 1 at 5
Mar. 15, 2017.

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Under the appropriate caution against aggressively applying the sham affidavit rule, the
Couit finds defendants' argument unavailing. Coutts must apply this rule with all due caution
because "the rule ... threatens to ensnare parties who may have simply been confused during
theit· deposition testimony and may encourage gamesmanship by opposing attorneys."

Van

Asdale v. Int'/ Game Tech., 577 F.3d 989, 998 (9th Cir. 2009); see Yeager v. Bowlin, 693 F.3d

1076, 1080 (9th Cir. 2012) (explaining that the sham affidavit rule "is in tension with the
principle that the coutt is not to make credibility determinations when granting or denying
summaty judgment"). As such, not every contradiction gives just cause for the Coutt to strike
inconsistent pottions of plaintiffs allegedly sham affidavit. Yeager, 693 F.3d at 1080. Only
those inconsistencies that are "clear and unambiguous" justify striking the affidavit. Id. (quoting
Van Asda/e, 577 F.3d at 998-99). Here, the two statements do not clearly and unambiguously

conflict because plaintiffs deposition testimony speaks to defendants' offer of some time to
respond and plaintiffs affidavit speaks to assertion that he did not have sitfficient time to
meaningfully respond. These two statements are not irreconcilable. Therefore, the Comt rejects
defendants' argument that plaintiff submitted a sham affidavit.
However, plaintiff's assettion that more time was necessary to respond is nonetheless
unpersuasive.

Plaintiff's deposition testimony indicates he was advised not to respond to

defendants' offer to submit additional evidence.

Walkup Deel. Ex. 1 at 4 Mar. 15, 2017.

Because opting out of process afforded cannot give rise to a procedural due process claim,
plaintiff fails to raise a genuine dispute of material fact that more time would have added value
to an allegedly deficient process. Reinlasoder v. City of Colstrip, 657 F. App'x 636, 638-39 (9th

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Cir. 2016); Correa v. Nampa Sch. Dist. No. 131, 645 F.2d 814, 817 (9th Cir. 1981); Peacock,
597 F.2d at 166.
Second, plaintiff argues that without written explanation of the allegations against him,
he did not have a meaningful opportunity to respond. Defendants respond they exhausted their
due process requirements by providing a detailed oral summary of the evidence against plaintiff
as well as a written summaty of their findings. Walkup Deel. Ex. l at 5-14 Mar. 15, 2017;
Blandy Deel. Ex. 3 at 1. While the Supreme Comt recognized that generally a "tenured public
employee is entitled to oral or written notice of the charges against him [and] an explanation of
the employer's evidence," Loudermill, 470 U.S. at 546, a summaiy of evidence may, "in certain
circumstance, provide sufficient notice to allow a meaningful oppmtunity to respond[,]" ASSE
Int'!, Inc., 803 FJd at 1077. However, broad summaries of allegations do not always provide
sufficiently meaningful oppmtunity to respond to the evidence, particularly where the
government declines to provide "crucial details" and asserts that the allegations come from
"confidential sources." Id.

Evidence that is more detailed would provide plaintiff a greater

opportunity to find inconsistencies and weaknesses in defendants' reasoning, decreasing the risk
of erroneous deprivation. Moreover, it appears defendants could have provided access to the
actual complaints without incun'ing any substantial burden. Plaintiff therefore raises a genuine
dispute over material fact that defendants deprived him of a meaningful oppo1tunity to respond
to the charges and evidence against him.
Finally, plaintiff argues that the process afforded violated procedural due process because
defendants must offer some degree of an open mind to hearing and evaluating plaintiffs
arguments in order to comply with basic fairness. See Withrow v. Larkin, 421 U.S. 35, 46-47

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(1975) (explaining that the due process right to a fundamentally fair tribunal "applies to
administrative agencies"). In order to provide a meaningful opportunity to safeguard a plaintiffs
protected libe1ty or prope1ty interests, defendants cannot offer process as a mere formality and
cannot listen to plaintiffs evidence with a tin ear because a fundamentally fair hearing requires
some possibility of altering defendants' decision. Brady v. Gebbie, 859 F .2d 1543, 1555 (9th
Cir. 1988); Matthews v. Harney County, 819 F.2d at 893-94 ("Due process of law is not present
where the state has gone through the mechanics of providing a hearing, but the hearing is totally
devoid of a meaningful opportunity to be heard.") (quoting Washington v. Kirksey, 811 F .2d 561,
564 (I Ith Cir. 1987)) (alterations normalized).
In the procedural due process context, courts presume government defendants exercise
rational, good faith decision-making.

In order to "overcome a presumption of honesty and

integrity in those serving as adjudicators," plaintiff must show either that the decision-maker was
actually biased or that "the probability of actual bias on the part of the judge or decision[-)maker
is too high to be constitutionally tolerable." Withrow, 421 U.S. at 47.
To show actual bias, plaintiff must show decision-makers "display a deep-seated
favoritism or antagonism that would make fair judgment impossible." Liteky v. United States,
510 U.S. 540, 555 (1994) see Stivers v. Pierce, 71 F.3d 732, 744 (9th Cir. 1995) (explaining
some pmtiality or hostility standing alone does not rebut the presumption of honesty in
government decision-making); United States v. State of Or., 44 F.3d 758, 772 (9th Cir. 1994)
(explaining that "generalized suspicion of inhospitable treatment ... , in itself," is insufficient to
establish a due process violation).

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"Supreme Court precedent reveals only three circumstances in which an appearance of
bias-as opposed to evidence of actual bias"-violates procedural due process.

Crater v.

Ga/aza, 491 F.3d 1119, 1131 (9th Cir. 2007). There is an intolerable risk that decision-makers
will unreasonably prejudge an issue when they have "direct, personal, substantial pecuniary
interest in reaching a conclusion against one of the" participants, are "embroiled in a running,
bitter controversy" with one of the participants, or meaningfully paiiicipated in "the accusatory
process."

Id. (citations and quotation marks omitted) (alterations normalized); see In re

Murchison, 349 U.S. 133, 136 (1955) (explaining that due process reflects the maxim that "no
man can be a judge in his own case and no man is permitted to try cases where he has an interest
in the outcome").
Because plaintiff does not come forward with substantial evidence that would support a
finding of apparent bias, plaintiff must come forward with evidence of actual bias strong enough
to overcome the presumption of honesty in decision-making of government officials.
On this point, plaintiff testifies to the hostility during the December 18, 2014 meeting and
bemoans that "[a]ny attempt at an answer I provided became contested." Pavel Deel.

~

5.

Plaintiff also testifies that an investigator said, "[w]e're going to find a pattern; you might as well
admit it." Id.

~

6. Even assuming that testimony could support a finding of actual bias, it would

be insufficient to supp01i a due process claim because it shows bias on the part of the
investigators and not on the part of the final decision-makers. See Lumbreras v. Roberts, 319 F.
Supp. 2d 1191, 1211 (D. Or. 2004) (granting summary judgment on a procedural due process
claim because it was "undisputed that the ultimate decision-makers acted free of the influence
of' the allegedly biased actor), ajf'd, 156 F. App'x 952 (9th Cir. 2005); Holder, 2016 WL

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1725299, at *3 (finding insufficient evidence that the final decision-maker, rather than the
plaintiff's direct supervisor, was biased).
In his declaration, plaintiff also says an unidentified person told him that no
reconsideration was possible after the January 16 meeting. Pavel

Deel.~

13. That statement is

inadmissible hearsay. "Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

Orr v. Bank of America, NY & SA, 285 F.3d 764, 778 (9th Cir. 2002) (quoting Fed. R. Evid.
801(c)) (internal quotation marks omitted). Hearsay is inadmissible "unless it is defined as nonhearsay under Federal Rule of Evidence 80l(d) or falls within a hearsay exception under Rules
803, 804 or 807 ." Id. The mere fact that a litigant offers hearsay evidence does not prevent that
evidence from being considered on summary judgment "so long as the underlying evidence
could be provided in an admissible form at trial, such as by live testimony[,]" but the litigant
bears the burden of explaining that the evidence would be admissible in some form at trial. JL

Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016). Without
assurance that the evidence would be admissible, it is insufficient to rebut defendants'
presumption of good faith government decision-making. Chao v. Westside Drywall, Inc., 709 F.
Supp. 2d 1037, 1048 & 1058 (D. Or. 2010) (explaining "deference to the non-moving party has
limits" because "speculative testimony" or a scintilla of evidence is insufficient to stave off a
motion for summary judgment under Federal Rule of Civil Procecdure 56(c)(l)'s requirement
that the non-movant point to specific facts).
Federal Rule of Civil Procedure 56(e) gives courts discretion to temper the harsh results
of losing a motion for summary judgment on evidentiary technicalities by providing litigants an

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opportunity to cure deficiencies in the record. Sch. Dist. No. JJ, A1ultnomah Cnty., Or. v.

ACandS, Inc., 5 F.3d 1255, 1261 (9th Cir. 1993) ("When a party opposing summary judgment
fails to comply with the formalities of Rule 56, a court may choose to be somewhat lenient in the
exercise of its discretion to deal with the deficiency."). While the Comt could provide another
oppmtunity for plaintiff to properly support his asse1tion, the Comt declines to exercise
discretion under 56(e) because it would be futile.

As the Court will explain below, even if

plaintiff were able to raise a genuine dispute of material fact on this point, the Court dismisses
plaintiffs procedural due process claim on the basis that defendants deserve qualified immunity.
Finally, plaintiff points to Ms. Merskin's testimony that many of OAAEO's
investigations proceed under a presumption of guilt and under motivated reasoning, invariably
lead to discipline.

Merskin Deel.

~

10 ("[G]iven my past experience with the [OAAEO's]

process, and the hostile, accusatory tone of the December meeting, it seemed to me a foregone
conclusion that the investigation would determine that he was guilty as charged and he would be
disciplined in some way."). Although this is indirect, relatively weak evidence of actual bias,
plaintiffs affidavit from a third party could raise a triable issue regarding whether defendant had
a meaningful opportunity to change the termination decision between January 16 and January 21.

But cf Liteky, 510 U.S. at 555 (holding, in the context of judicial proceedings, that "opinions
formed . . . on the basis of facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings do not constitute a basis for a bias or partiality unless they
display a deep-seated favoritism or antagonism that would make fair judgment impossible.").
On the merits, plaintiffs procedural due process claim would survive summary judgment
because there are genuine issue of material fact regarding whether the decision-makers were

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biased and whether access to the written charges against him would have improved his ability to
meaningfully respond to those charges. Nonetheless, as explained below, defendants are entitled
to summary judgment because of qualified immunity.
b.

Qualified Immunity for Procedural Due Process

The doctrine of qualified immunity shields public officials from bearing the burden of
suit for damages "insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982); see Davis v. Scherer, 468 U.S. 183, 195 (1984) ("The qualified
immunity doctrine recognizes that officials can act without fear of harassing litigation only if
they reasonably can anticipate when their conduct may give rise to liability for damages[.]").
Moreover, the justifications for granting qualified immunity are strongest where officials must
act "swiftly and firmly," Scheuer v. Rhodes, 416 U.S. 232, 246 (1974), abrogated on other
grounds by Harlow, 457 U.S. 800, because of "the danger that the threat of ... liability would
deter [officials'] willingness to execute [their duties] with the decisiveness and the judgment
required by the public good[,]" id. at 240.
Determining whether officials are owed qualified immunity involves two
inquiries: (I) whether, taken in the light most favorable to the party asserting the
injury, the facts alleged show the officer's conduct violated a constitutional right;
and (2) if so, whether the right was clearly established in light of the specific
context of the case.
al-Kidd v. Ashcroft, 580 F.3d 949, 964 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)), rev'd
on other grounds, 536 U.S. 731 (2011). Under either prong of the inquiry, courts may not import
disputed material facts. Tolan, 134 S. Ct. at 1866. As explained above, taking the evidence in

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the light most favorable to plaintiff, he has shown a violation of his procedural due process
rights. The question is whether those rights were clearly established.
The "far-reaching" protections of qualified immunity extend to officials who make
reasonable mistakes. Brewster, 149 F.3d at 977; see Hunter v. B1yant, 502 U.S. 224, 229 (1991)
(explaining that qualified immunity "gives ample room for make mistaken judgments" and
applies where the legality of the conduct is a close call because "officials should not err always
on the side of caution") (quoting :Malley v. Briggs, 475 U.S. 335, 343 (1986) and Davis v.

Scherer, 468 U.S. 183, 196 (1984)). The "government interest in avoiding unwarranted timidity
on the part of those engaged in the public's business [is] the most important special government
immunity-producing concern," Filarsky v. Delia, 566 U.S. 377, 390 (2012) (quoting Richardson

v. lvfcKnight, 521 U.S. 399, 409 (1997)) (internal quotations omitted), because "holding officials
liable for reasonable mistakes might unnecessarily paralyze their ability to make difficult
decisions in challenging situations, thus disrupting the effective performance of their public
duties[,]" lvfueller v. Auker, 576 F.3d 979, 993 (9th Cir. 2009). As such, "[t]o determine whether
a constitutional right has been clearly established for qualified immunity purposes, we must
survey the legal landscape and examine those cases that are most like the instant case" to find
whether the law is so clear that no reasonable official would be unaware of the risk of violating
plaintiffs rights. Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d
963, 970 (9th Cir. 2010) (quoting Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996)) (quotations
omitted). The defendant need not identify "a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011).

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Procedural due process requires a fact-specific and mercurial inquiry. See Gilbert, 520
U.S. at 930 (explaining any categorical rule in the procedural due process context is
"indefensible"). As the Ninth Circuit has explained
[F]or all its consequence, due process has never been, and perhaps never can be,
precisely defined. Rather, the phrase expresses the requirement of fundamental
fairness, a requirement whose meaning can be as opaque as its importance is
lofty. As a result, deciphering and applying the Due Process Clause is, at best, an
uncertain enterprise .... After all, unlike some legal rules, due process is not a
technical conception with a fixed content unrelated to time, place and
circumstances .... One cannot accurately predict how any specific case will be
decided.
Brewster, 149 F.3d at 983-84 (quotation marks and citations omitted). As such, procedural due

process claims "can rarely be considered 'clearly established' at least in the absence of closely
corresponding factual and legal precedent." Baker v. Racansky, 887 F.2d 183, 187 (9th Cir.
1989) (quotation marks omitted).
Plaintiff makes no arguments concerning qualified immunity.
defendants did not violate a clearly established right.

The Court concludes

It is not at all clear how much pre-

termination process plaintiff deserved because of the visibility of plaintiffs position, the
necessity for public confidence to do his job effectively, the student safety concerns, and the
robust post-termination arbitration process offered to plaintiff. See Brewster, 149 F.3d at 984
(explaining that the Supreme Court is expanding the rule that pre-deprivation hearings are not
always required).

While Gilbert and lvfustafa occurred in the context of public employers

suspending employees without pay rather than terminating them, the case law is opaque as to
how these precedents apply in the termination setting given the university's particular interest in
fostering student safety and a productive learning environment. See Sina/oa Lake Owners Ass 'n

v. Tudor, 882 F.2d 1398, 1406 (9th Cir. 1989) ("The Supreme Court has repeatedly held that
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summary governmental action taken in emergencies and designed to protect the public health,
safety and general welfare does not violate due process."), overruled on other grounds by
Armendariz v. Penman, 75 F.3d 1311, 1324 (9th Cir. 1996). It is not clearly established that
plaintiff was entitled to any more pre-termination process than he received.
Even assuming defendants violated plaintiffs due process rights by deciding to provide
only an oral summary of the evidence at the January 16 meeting, that decision is a reasonable
mistake based on the unclearly defined law. Brewster, 149 F.3d at 977 ("[I]n order to ensure that
government officials receive necessary guidance, courts should focus the qualified immunity
inquiry at the level of implementation."). In Loudermill, 470 U.S. at 546, the Supreme Court
required employers to provide oral or written notice of the changes against plaintiff and "an
explanation of the employer's evidence" at the pre-termination hearing. Here, the university
asked detailed and thorough questions to solicit plaintiffs responses to each and every allegation
the student made in her report to the police. See Thornton Deel. Ex. 2 (doc. 66); Walkup Deel.
Ex. 1 Mar. 15, 2017. The university also provided plaintiff with a written summary of the
factual findings supporting the termination decision. Blandy Deel. Ex. 3 at I. That process
reasonably complies with Loudermill. Further, defendants reasonably could have concluded that
fewer procedural protections were necessary in light of the student's police report. l'viustafa, 157
F.3d at 1177 (explaining a police report filed by a student that a teacher engaged in sexual
misconduct serves as substantial assurance that adverse employment action is not baseless or
unwarranted).

Not every reasonable official would be on fair notice that a detailed oral

recounting is insufficient because the pre-termination process is not an adjudication but merely
serves as an initial check to ensure the university's decision is based on some evidence and not

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arbitrary. See Dosier v. Cent. Oregon C!nty. Coll., 2015 WL 6121907, at *3 (D. Or. Oct. 14,
2015) (explaining a pre-dismissal letter stating the reasons for termination and the opportunity to
respond to those reasons satisfied procedural due process).
Moreover, plaintiffs arguments that defendants violated procedural due process by
depriving him of fair tribunal are unavailing in the qualified immunity context because the law is
not clearly established given the pmticular contours of this case. Even though it "is well-settled
that the Due Process Clause prevents the state from depriving a plaintiff of a protected prope1ty
interest without a fair trial in a fair tribunal," Stivers, 71 F.3d at 741 (quotation marks omitted),
case law does not clearly establish that a pre-termination process requires unbiased arbiters when
plaintiff has access to a robust post-termination arbitration under his collective bargaining
agreement. As the Ninth Circuit explained, "the decision[-]maker in a pre-termination hearing
need not be impartial, so long as an impmtial decision[-]maker is provided at the posttermination hearing" because the pre-termination process is not a full adjudication on the merits.

Clements, 69 F.3d at 333 n.15 (emphasis in original); Sadid v. Vailas, 936 F. Supp. 2d 1207,
1216 & 1231 (D. Idaho 2013) (holding that patticipation of university president in pretermination proceedings did not violate clearly established law even though the terminated
employee had personally attacked the president's leadership in the press).3 Therefore, because

3

Because plaintiff does not come forward with substantial evidence to rebut the presumption of
honesty in government decision-making as to plaintiffs post-termination process, the Court
cannot find that the arbitrator appointed under plaintiffs collective-bargaining agreement would
not have ferreted out and corrected any biased decision-making in plaintiffs pre-termination
process. Out-of-circuit case law also finds no due process violation based on bias in the
plaintiff's pre-termination process when the plaintiff has post-termination process available, if
the plaintiff does not actually proceed to post-termination hearings. Sutton v. Bailey, 702 F.3d
444, 449 (8th Cir. 2012); Farhat v. Jopke, 370 F.3d 580, 597 (6th Cir. 2004). As the Fifth
Circuit explained, the "state is obligated only to make available the means by which [the
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no clearly established law put defendants on fair notice that plaintiff deserved more process, the
Court grants defendants summary judgment on plaintiffs procedural due process claim on the
grounds defendants deserve qualified immunity.
II.

Substantive Due Process

Substantive due process prohibits a government from depriving "a person of life, liberty,
or property in such a way that ... interferes with rights implicit in the concept of ordered
libetty." Engquist v. Or. Dep't of Agric., 478 F.3d 985, 996 (9th Cir. 2007), aff'd sub nom. 553
U.S. 591 (2008) (quoting Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 948 (9th Cir. 2004))
(ellipsis in original). "A threshold requirement to a substantive or procedural due process claim
is the plaintiffs showing of a libetty or propetty interest protected by the Constitution."

Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F .3d 56, 62 (9th Cir. 1994). Occupational
freedom to practice the profession of one's choice is a protected liberty interest, even though
substantive due process does not protect the right to be in any paiticular job. Engquist, 478 F.3d
at 996.

However because not every tort gives rise to a substantive due process violation,

substantive due process rights for occupational liberty only give rise to liability in the "extreme
cases," such as when a government creates a "blacklist, which when circulated or otherwise
publicized to prospective employers effectively excludes the blacklisted individual from his
occupation, much as if the government had yanked the license of an individual in an occupation
that requires licensure."

Id. at 997-98 (citation and internal quotation marks omitted); see

Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 531 (7th Cir. 2000) (explaining that

employee] can receive redress for the deprivations." Schaper v. City ofHuntsville, 813 F.2d 709,
715-16 (5th Cir. 1987) (quoting Parrott v. Taylor, 451 U.S. 527, 543 (1981), overruled on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986)) (quotation marks omitted).
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plaintiffs must show that "the character and circumstances of a public employer's stigmatizing
conduct or statements are such as to have destroyed an employee's freedom to take advantage of
other employment opportunities."). Public employers' stigmatizing statements that merely cause
"reduced economic returns and diminished prestige, but not permanent exclusion from, or
protracted interruption of, gainful employment within the trade or profession" are not sufficient
to state a due process deprivation. Blantz, 727 F.3d at 925 (9th Cir. 2013) (quotation marks
omitted).

Ultimately, plaintiff must show defendants were arbitrary and had no reason for

effectively blacklisting him from his chosen profession to stave off defendants' summary
judgment motion.4 FDIC v. Henderson, 940 F.2d 465, 474 (9th Cir. 1991) (explaining that
plaintiffs must show the government reasoning has "no substantial relation to the public health,
safety, morals, or general welfare") (quoting Lebbos v. Judges of Super. Ct., Santa Clara Cnty.,
883 F.2d 810, 818 (9th Cir. 1989)).
There are two reasons why plaintiff fails to raise a genuine dispute over material fact that
preserves a question for the jury. First, plaintiffs evidence of blacklisting falls short of "the
extremely high bar to make out a substantive due process violation." Boyd v. Edwards, 2015
WL 3407890, at *2 (D. Or. May 27, 2015). Plaintiff suggests that since publication of the
charges against him, he suffered irreparable harm to his reputation and lost speaking
4

Depending on the right at issue, comts may inquire into the government's actual reasons or
only consider "whether the government could have had a legitimate reason for acting as it did."
Sagana v. Tenorio, 384 F.3d 731, 743 (9th Cir. 2004), as amended (Oct. 18, 2004) (quoting
Wedges/Ledges, 24 F.3d at 66) (emphasis in original). The standard depends on whether
plaintiff alleges a violation of a fundamental right. Id. Although there is no precedent directly on
point, it appears that rational basis review would apply here because the liberty interest at issue
here is not a fundamental right. Cf Count1y Classic Dairies, Inc. v. State of Mont., Dep 't of
Commerce ]!;Jilk Control Bureau, 847 F.2d 593, 596 (9th Cir. 1998) (noting Supreme Comt
precedent holding that the "right to pursue a calling is not a fundamental right for purposes of the
Equal Protection Clause").
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opportunities, a grant, a contract, and spots on doctoral committees. Pavel Deel.

~~

22-24.

However, "some adverse effect on" plaintiffs ''.job prospects" is insufficient to give rise to a
substantive due process claim. Engquist, 478 F.3d at 998 (quoting Bordelon, 233 F.3d at 531).
Instead, plaintiff must show it is "vittually impossible ... to find new employment in" plaintiffs
chosen field. Id. (quoting Bordelon., 233 F.3d at 531). In Engquist, the plaintiff could not find
work after applying for approximately 200 jobs. Id. at 991. The Ninth Circuit found no rational
jury could find the defendant's "defamatory statements to two or three other people in the
industry" had caused the plaintiffs difficulty finding work, holding instead that the plaintiff
merely showed she had difficulty finding a job in the same highly specialized field in Oregon.
Id. at 999.

Here, plaintiff concedes he has not applied to any jobs as there have been no

openings. Pavel Dep. 215:8-16. As such, plaintiff fails to raise a genuine dispute over material
fact that defendants essentially blacklisted him from teaching.
Second, the Court must grant defendants qualified immunity because the law is not
clearly established. As one court in the Ninth Circuit explained, there is a circuit split and
uncertainty within the Ninth Circuit as to whether the same actor must deprive plaintiff of his
libe1ty interest and publicize stigmatizing information. See Eberhard v. California Highway
Patrol, 73 F. Supp. 3d 1122, 1131 (N.D. Cal. 2014). Here, none of the named defendants

appears on the e-mail chain with the Register Guard that led to the release of the police report
alleging plaintiff sexually harassed a student.

See Thornton Deel. Ex. l.

In light of the

ambiguity in the law, that evidence is fatal to plaintiffs claim and qualified immunity bars
liability.

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CONCLUSION

The Court GRANTS defendants' motion for partial summary judgment (doc. 35).
Plaintiffs request for oral argument is denied as unnecessary.
IT IS SO ORDERED.
Dated this

r-P

~ day of April 2017.

~UL~
AnnAiken
United States District Judge

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