Emeldi v. University of Oregon, 032112 FED9, 10-35551

Docket Nº:10-35551
Opinion Judge:GOULD, Circuit Judge:
Party Name:Monica Emeldi, Plaintiff-Appellant, v. University of Oregon, Defendant-Appellee.
Attorney:David Force, Law Offices of David C. Force, Eugene, Oregon, for plaintiff Monica Emeldi. Denise Gale Fjordbeck, Assistant Attorney General, Office of the Oregon Attorney General, Salem, Oregon, for the University of Oregon.
Judge Panel:Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges. KOZINSKI Chief Judge, with whom Judges O'SCANNLAIN, GRABER, FISHER, TALLMAN, BEA and M. SMITH join, dissenting from the order denying the petition for rehearing en banc: FISHER, Circuit Judge, dissenting:
Case Date:March 21, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Monica Emeldi, Plaintiff-Appellant,

v.

University of Oregon, Defendant-Appellee.

No. 10-35551

United States Court of Appeals, Ninth Circuit

March 21, 2012

Argued and Submitted June 9, 2011, Portland, Oregon.

Amended October 17, 2012.

Appeal from the United States District Court for the District of Oregon Michael R. Hogan, District Judge, Presiding D.C. No. 6:08-cv-06346-HO

COUNSEL

David Force, Law Offices of David C. Force, Eugene, Oregon, for plaintiff Monica Emeldi.

Denise Gale Fjordbeck, Assistant Attorney General, Office of the Oregon Attorney General, Salem, Oregon, for the University of Oregon.

Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

ORDER

The opinion in the above-captioned matter filed on March 21, 2012, and published at 673 F.3d 1218, is amended as follows and is simultaneously filed with this order:

At slip opinion page 3268, line 2, add a footnote after , stating: Jackson, "[w]e do not rely on regulations extending Title IX's protection beyond its statutory limits." 544 U.S. at 178. Our decision rests on "the statute itself, " not on regulations implementing Title IX. Id.; see also 34 C.F.R. §§ 100.7(e), 106.71.>.

Judges Gould and Paez have voted to deny the petition for panel rehearing and rehearing en banc. Judge Fisher has voted to grant the petition for panel rehearing and rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for panel rehearing and rehearing en banc is denied.

No future petitions for rehearing or rehearing en banc will be entertained.

IT IS SO ORDERED.

KOZINSKI Chief Judge, with whom Judges O'SCANNLAIN, GRABER, FISHER, TALLMAN, BEA and M. SMITH join, dissenting from the order denying the petition for rehearing en banc:

Bad facts make bad law. No facts make worse law. That's what happened here when the panel majority allowed plaintiff Monica Emeldi to escape summary judgment even though she produced no evidence of causation, an element of her retaliation claim. In the place of evidence, the majority permits Emeldi to create a material issue of fact by speculation. This opinion undermines the pleading framework for Title IX and Title VII and erodes the well-established standards for summary judgment. Worse still, it jeopardizes academic freedom by making it far too easy for students to bring retaliation claims against their professors. Plaintiffs will now cite Emeldi in droves to fight off summary judgment: We may not have any evidence, but it's enough under Emeldi. Defendants will go straight to trial or their checkbooks—because summary judgment will be out of reach in the Ninth Circuit.

I

Monica Emeldi, a former Ph.D. candidate at the University of Oregon, had a falling out with her dissertation advisor. Emeldi v. Univ. of Or., 673 F.3d 1218, 1221-22 (9th Cir. 2012). Emeldi says that she complained to a university administrator about sex discrimination, the administrator relayed this complaint to Emeldi's advisor and the advisor resigned as her dissertation chair in retaliation. Id. at 1222, 1225. Emeldi also asserts, again without evidence, that the advisor prevented Emeldi from finding a replacement, thus forcing her to withdraw. Id. at 1222.

Under the established Title VII pleading framework, which the majority applies to this Title IX case, Emeldi must show a causal connection between her complaint and her advisor's resignation. Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008). Emeldi says the administrator told the advisor about the discrimination complaint in a phone call between the two. Emeldi, 673 F.3d at 1222, 1226-27. But Emeldi has no evidence that the administrator and the advisor discussed discrimination. To the contrary, the administrator stated under oath that she didn't talk to the advisor about discrimination and that she couldn't have because she never heard Emeldi make the complaint in the first place. Id. at 1222, 1226.

This case is not at the pleading stage. The parties have gone through discovery and Emeldi has come up with nothing to support her speculation that the discrimination complaint was discussed. All we're left with is Emeldi's claim, sourced to her own amended declaration, that the administrator said she "debriefed" the advisor about the conversation with Emeldi. Id. at 1222, 1226 n.3, 1228. Debriefing the advisor is hardly an admission that they discussed discrimination. This is especially true in light of the fact that the administrator asked for and received Emeldi's permission to call the advisor about Emeldi's dissertation difficulties, id. at 1235 & n.3 (Fisher, J., dissenting), and in light of the fact that the administrator testified she'd never heard the discrimination complaint, id. at 1222, 1226 (majority opinion).

The majority finds the debriefing "evidence" sufficient to reverse the grant of summary judgment. It holds that "a jury reasonably could infer that [the administrator] passed Emeldi's complaint on to [the advisor]." Id. at 1226. This is a serious error that contravenes our own precedent, as the dissent notes: "[W]hen the non-moving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact." Id. at 1233 (Fisher, J., dissenting) (quoting Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) (per curiam)). It's also contrary to the teachings of the Supreme Court, by permitting Emeldi to plead her way out of summary judgment.

The Supreme Court has held that "mere pleadings themselves" can't defeat summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). And even where some evidence is presented beyond the pleadings, that's still not enough "[i]f the evidence is merely colorable, or is not significantly probative." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (internal citations omitted). The supposed admission about debriefing says nothing about whether discrimination was discussed, so it's not even relevant evidence. But even if it were, it's of vanishing probative value, far short of the threshold needed to stave off summary judgment.

The most Emeldi can say about the phone call is that the administrator and the advisor discussed something about Emeldi's conversation with the administrator. The Supreme Court warned against defeating summary judgment based on inferences drawn from such "ambiguous conduct": "[C]onduct that is as consistent with permissible competition as with illegal conspiracy does not, without more, support even an inference of conspiracy." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 n.21 (1986); see also Bell A. Corp. v. Twombly, 550 U.S. 544, 554 (2007). The administrator's phone call to the dissertation advisor is just such an example: It's as consistent with a discussion about Emeldi's dissertation as with any mention of discrimination. The majority is wrong to rely on it as evidence of causation.

The danger of the majority's opinion should be obvious. If a plaintiff can escape summary judgment based on his own vague description of what someone else said during a conversation with a third party, defendants can never get summary judgment because the plaintiff will always have his own word to fall back on. This would thwart the Supreme Court's directive that summary judgment be "regarded not as a disfavored procedural shortcut, " but as "an integral part of the Federal Rules" designed "to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (internal quotation marks omitted). It would also cut against the grain of the Supreme Court's recent opinions in Twombly and Iqbal, which required plaintiffs to provide more than "bare assertions" or a " 'formulaic recitation of the elements' " in pleading a claim. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (quoting Twombly, 550 U.S. at 555). Even at the motion to dismiss stage, plaintiffs must do something to "nudge[ ] their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Emeldi has made it all the way past summary judgment without doing even that.

II

The majority's opinion would be bad enough if confined to the Title VII context. But this decision will impair the open exchange of ideas in our schools and universities if applied, as the panel majority does, in the Title IX context. Even accepting that the Title VII pleading standard applies to Title IX cases, no one claims the pleading standard should be lower for students suing professors in the Ivory Tower than for employees suing supervisors on the factory floor. The relationship between professor and Ph.D. student requires both parties to engage in candid, searing analysis of each other and each other's ideas. Methodology, philosophy and personality often lead to intractable disputes and, when they do, the professor must be free to walk away without fear of a frivolous discrimination suit.

It's not just the practicalities of academia that require this freedom. The First Amendment does, too. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978). In equating Title IX with Title VII, the panel overlooks the critical differences between academia and the outside world. It applies the law so loosely that one of the laxest interpretations of the pleading standard is now planted squarely in academia, just where the pleading standard should be highest. If this ill-considered precedent stands, professors will have to think twice before giving honest evaluations of their students for fear that disgruntled students may haul them into court. This is a loss for professors and students and...

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