Emeldi v. Univ. of Oregon

• Decision Date: 21 March 2012
• Docket Number: No. 10–35551.,10–35551.
• Citation: 673 F.3d 1218,2012 Daily Journal D.A.R. 3743,12 Cal. Daily Op. Serv. 3319,278 Ed. Law Rep. 83
• Parties: Monica EMELDI, Plaintiff–Appellant, v. UNIVERSITY OF OREGON, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 3319

2012 Daily Journal D.A.R. 3743

278 Ed. Law Rep. 83

673 F.3d 1218

Monica EMELDI, Plaintiff–Appellant,

v.UNIVERSITY OF OREGON, Defendant–Appellee.

No. 10–35551.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2011.Filed March 21, 2012.

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

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

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.

Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.

Opinion by Judge GOULD; Dissent by Judge FISHER.

OPINION

GOULD, Circuit Judge:

In Jackson v. Birmingham Board of Education, the Supreme Court held that retaliation by a federally funded educational institution against someone who complains of gender discrimination is actionable under Title IX. 544 U.S. 167, 171, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). We must decide what a plaintiff must prove to prevail on a Title IX retaliation claim, and whether plaintiff Monica Emeldi adduced sufficient evidence of her claim to overcome summary judgment.

I

Monica Emeldi sued the University of Oregon, alleging that it prevented her from completing a Ph.D. program in retaliation for having complained of gender-based institutional bias in the University's Ph.D. program, and gender discrimination by her faculty dissertation committee chair.

Emeldi was a Ph.D. student in the University of Oregon's College of Education, in its Department of Special Education. Her advisor and dissertation committee chair, Edward Kame'enui, took a sabbatical starting in the fall of 2005. Emeldi asked Robert Horner, another professor, to replace Kame'enui as her dissertation chair. Horner agreed. During the time of Emeldi's work with Horner, Emeldi and other Ph.D. candidates complained to Mike Bullis, Dean of the College of Education, about lack of adequate support for female Ph.D. candidates. In May 2007, Emeldi produced a memo summarizing a meeting between Bullis and several graduate students. That memo lists, as one of fifteen topics discussed, the students' concern about the Department's lack of female role models. The memo says:

Students request that qualified Women be hired into tenured faculty positions [emphasis]. Students attempted and were unable to identify a current female appointment to a tenured faculty position. Students need to experience empowered female role models successfully working within an academic context [emphasis]. Doctoral students request that the college model a balance of gender appointments that reflect the proportion of student gender population ratios.

While the University maintains that no one other than Bullis knew of the memo, Emeldi's position was that she was told that all Department faculty received copies; that it was “common knowledge in the College of Education” that she was dissatisfied with the Department's level of support for women; that Horner, her dissertation chair, was treating her less favorably than his male graduate students and did not give her the same support and attention that he gave male candidates; that Horner often ignored her and did not make eye contact with her; that, when Emeldi attended Horner's group meetings with his graduate students, either she was not on the agenda, or no substantial or meaningful work of hers was discussed; and that Horner's male students had opportunities that were not available to his female students, such as access to more and better resources, including more office space and better technology for collecting data.

Whatever their teacher-student relationship at first, Emeldi's relationship with Horner as Ph.D. advisor soured. The reasons for this development are unclear. The University vigorously disputes that Horner treated his male students more favorably than his female students, and its position is that Emeldi's relationship with Horner deteriorated because Emeldi “refused to listen to Dr. Horner regarding the necessary changes to produce a dissertation that would be a focused piece of scholarship.” ¹ Emeldi attributes the worsening relationship to Horner's gender animus.

In October 2007, Emeldi met with University administrators Annie Bentz and Marian Friestad to discuss her worsening relationship with Horner. Emeldi says that she complained to Friestad about the Department's “institutional bias in favor of male doctoral candidates, and a relative lack of support and role models for female candidates.” To illustrate her experience of this “institutional bias,” she said that she “identified the chair of [her] dissertation committee, Dr. Rob Horner, as being distant and relatively inaccessible to me.” According to Emeldi, Friestad then alerted Horner that Emeldi had accused him of discriminating against her. While Friestad does not dispute that she spoke with Horner, her version of the conversation Emeldi described is markedly different. Friestad, who is an administrator and professor, says that Emeldi never alleged discrimination in their discussion about Horner and that Friestad and Horner discussed only Emeldi's dissertation, not an allegation of discrimination. However, Emeldi in her amended declaration explicitly said that Friestad told Emeldi that Friestad had “debriefed” Horner on the conversation Friestad had with Emeldi. Within a few weeks, Horner, by email, resigned as Emeldi's dissertation chair. According to Emeldi, Horner then told other Department faculty members that Emeldi should not be granted a Ph.D., and should instead be directed into the Ed.D. program, which Emeldi says is a less prestigious degree. The University denies that this occurred.

Emeldi sought a new dissertation chair, but did not find one. According to Emeldi, she asked fifteen faculty members in her Department, some of whom said that they were too busy and some of whom said that they were not qualified to supervise her research. The University doesn't dispute that she inquired of fifteen faculty members, but criticizes Emeldi's efforts to obtain a new dissertation chair as inadequate, arguing that she did not try to recruit two faculty members who were qualified and available, including her former advisor Kame'enui. While seeking a new dissertation chair, Emeldi also pursued the University's internal grievance procedure, which, she says, contributed to her inability to find a willing faculty member. Unable to complete her Ph.D. without a dissertation chair, Emeldi abandoned her pursuit of the Ph.D. degree, thus effectively withdrawing from the University.

Emeldi then filed this lawsuit in Oregon state court. The University timely removed the action to federal court, but mistakenly said in its notice of removal that Emeldi's suit was filed in Linn and Multnomah Counties, when in fact the suit was filed in Lane County. The University then filed an amended notice of removal correcting these errors, but the amendment was filed after the 30–day removal deadline had expired. Emeldi sought remand on the basis that the defective notice of removal was fatal to federal jurisdiction, but the district court rejected this argument.

After a period of discovery, the University moved for summary judgment, which Emeldi opposed. The district court granted summary judgment for the University on the alternative grounds that Emeldi did not engage in protected activity and that she adduced no evidence showing that the University's adverse actions were causally related to her protected activity. Emeldi v. Univ. of Or., No. 08–6346, 2010 WL 2330190, at *2–5 (D.Or. June 4, 2010). Emeldi timely appealed.

II

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a grant of summary judgment de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). “Summary judgment is warranted when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011) (quoting Fed.R.Civ.P. 56(a)).

III

We start with the statutory premise that Title IX of the Education Amendments of 1972 bars gender-based discrimination by federally funded educational institutions. It provides, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681(a). In Jackson, the Supreme Court held that “[r]etaliation against a person because that person has complained of sex discrimination” is a form of gender-based discrimination actionable under Title IX. 544 U.S. at 173, 125 S.Ct. 1497.

Until now, we have not had occasion to say what a plaintiff must prove to prevail on a retaliation claim under Title IX. We join our sister circuits in applying the familiar framework used to decide retaliation claims under Title VII.² In this framework, a plaintiff who lacks direct evidence of retaliation must first make out a prima facie case of retaliation by showing (a) that he or she was engaged in protected activity, (b) that he or she suffered an adverse action, and (c) that there was a causal link between the two. Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir.2003). We have emphasized that to make out a prima facie case, a plaintiff need only make a minimal threshold showing of retaliation. As we have explained, “ ‘The requisite degree of proof necessary to establish a prima facie case for Title VII claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.’ ” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir.2008) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (ellipses omitted)); see also Humphries v....