Ronald Kramer v. Mary Cullinan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD H. KRAMER, No. 14-36103

Plaintiff-Appellee,

D.C. No.

v. 1:13-cv-00340-PA

MARY CULLINAN,

Defendant-Appellant, OPINION

and

SOUTHERN OREGON

UNIVERSITY; OREGON

UNIVERSITY SYSTEM; GEORGE

PERNSTEINER,

Defendants.

Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, District Judge, Presiding

Argued and Submitted June 7, 2017

Portland, Oregon

Filed January 3, 2018

Before: A. Wallace Tashima, Ronald M. Gould,

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson

2 KRAMER V. CULLINAN

SUMMARY*

Civil Rights

The panel reversed the district court’s order, on summary

judgment, denying qualified immunity to Dr. Mary Cullinan,

the former-President of Southern Oregon University, in an

action filed by Ronald Kramer alleging that Dr. Cullinan

violated his liberty interest by releasing stigmatizing

information in connection with his termination.

The panel held that Dr. Cullinan was entitled to qualified

immunity. The panel held that a letter drafted by counsel

concerning Kramer’s employment, which became publicly

available, did not contain stigmatizing content. The panel

held that the letter stopped short of actually imputing to

Kramer any bad faith, willful misconduct, intentional acts,

waste or fraud, and the letter did not reference the type of

stigmatizing statements that this Circuit has held to be

actionable, i.e., those accusing terminated employees of

dishonesty, immorality and the like. Viewing this evidence in

the light most favorable to Kramer, the panel concluded that

the district court’s characterization of the letter’s contents as

stigmatizing was erroneous, and that Dr. Cullinan was

entitled to qualified immunity. The panel further held that

even if the content were stigmatizing, it was not clearly

established law that charges other than fraud, dishonesty, and

immorality would trigger the requirements of a name-clearing

hearing. The panel therefore reversed the district court’s

decision denying qualified immunity and remanded with

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KRAMER V. CULLINAN 3

directions to enter summary judgment in favor of Dr.

Cullinan.

COUNSEL

Brenda K. Baumgart (argued), Amy Joseph Pedersen, Andrea

H. Thompson, and Rachel C. Lee, Stoel Rives LLP, Portland,

Oregon, for Defendant-Appellant.

Christine N. Moore (argued) and Richard S. Yugler, Landye

Bennett Blumstein LLP, Portland, Oregon, for

Plaintiff-Appellee.

OPINION

RAWLINSON, Circuit Judge:

Dr. Mary Cullinan (Dr. Cullinan), former-President of

Southern Oregon University (SOU), appeals from the district

court’s denial of her motion for summary judgment seeking

qualified immunity in an action filed by Ronald Kramer

(Kramer) alleging that Dr. Cullinan violated his liberty

interest by releasing stigmatizing information in connection

with his termination. Because it is unlikely that the

information released was stigmatizing, and because it was not

clearly established as a matter of law that the information was

stigmatizing, Dr. Cullinan was entitled to qualified immunity.

I. BACKGROUND

SOU employed Kramer on an annual appointment basis

in a dual role, as Executive Director of Jefferson Public Radio

4 KRAMER V. CULLINAN

(Public Radio) and as Executive Director of a related

foundation, the JPR Foundation, Inc. (Foundation). Kramer

reported directly to Dr. Cullinan.

At some point, Dr. Cullinan became concerned about

costly capital projects being undertaken by Foundation, such

as the acquisition and renovation of a theater and a

warehouse. Dr. Cullinan notified Foundation and the Oregon

University System (University System) Chancellor

(Chancellor Pernsteiner), of the potential financial risk to

SOU as a result of Foundation’s projects. Dr. Cullinan also

raised the issue of conflict-of-interest situations between

Public Radio and Foundation.

In response to Dr. Cullinan’s concerns, Chancellor

Pernsteiner initiated an asset and liability review of Public

Radio and Foundation. The resulting report (Audit Report)

concluded that Foundation’s new projects could impose

“additional strain” on community fund-raising and “may not

align with policy interests of SOU.” The Audit Report also

noted inherent problems, including actual, apparent, and

potential conflicts of interest with Kramer serving as

Executive Director of both Public Radio and Foundation. One

consequence of that arrangement was “a lack of segregation

of duties by the Executive Director of [Public Radio] when

entering into contracts,” which was a conflict of interest

because “one individual cannot adequately represent the

interests of two separate parties to the same agreement or

contract.” The Audit Report determined that this situation

was contrary to SOU’s contract policy.1

1

Additionally, Oregon Administrative Rule 580-046-0025(2)

provided that a foundation’s governing body, employees, and agents

“[s]hall not be subject to control by the institution or an institution

KRAMER V. CULLINAN 5

The Audit Report concluded that there was high internal

control risk regarding the key areas examined. The report

included recommendations to reduce those risks, including

prohibiting one person from serving as Executive Director of

both Public Radio and Foundation. In response, Dr. Cullinan

agreed to address the concerns raised by the Audit Report and

eliminate the conflict of interest posed by Kramer’s dual

roles. Dr. Cullinan convened a task force to address

implementation of the recommendations in the Audit Report.

Kramer resisted limiting his employment to one role, and

insisted that it was crucial to Public Radio and Foundation

that he continue serving as Executive Director of both

entities. The task force completed its work, but no

recommended resolution of the conflict presented by

Kramer’s dual roles was presented to Dr. Cullinan.

In the meantime, Kramer launched a counteroffensive,

drafting and distributing proposed resolutions to the

Foundation Board (Board). The resolutions would have

dramatically altered the relationship between SOU and

Foundation, deprived SOU of assets, and secured Kramer’s

position at Foundation. The resolutions were to be voted upon

at the Board meeting scheduled for March 22, 2012.

Upon learning of Kramer’s proposed resolutions, Dr.

Cullinan sought the advice of counsel, who sent a letter

(Miller Nash Letter) to Foundation’s attorney, dated the same

day as the scheduled board meeting. The Miller Nash Letter

included a copy of the Audit Report and highlighted the

recommendation that SOU eliminate the conflict of interest

employee” and “[s]hall not give the appearance that the institution or any

of its officers or employees control the foundation or its property.”

6 KRAMER V. CULLINAN

presented by Kramer’s dual role. The Miller Nash Letter

informed Foundation that SOU considered Kramer’s

proposed resolutions counterproductive, and requested that

Foundation’s Board not adopt the proposed resolutions. The

Letter also outlined potential avenues of legal redress against

Foundation, its Board, and/or Kramer, to protect SOU’s rights

in Public Radio and its assets.

The Miller Nash Letter also addressed the directors’ and

Kramer’s potential liability, outlining reasons why they might

not be protected by directors’ and officers’ liability insurance.

It is this portion of the Miller Nash Letter that precipitated

Kramer’s claim of stigmatization. In the course of explaining

why indemnification might not be available to Kramer or

Foundation’s directors, the Miller Nash Letter opined that

directors’ and officers’ liability policies generally “exclude

coverage for intentional acts, waste, or fraud.” The Miller

Nash Letter contained the following language that Kramer

also identified as stigmatizing:

Nor do we see a clear path to indemnity.

Article X of the bylaws forbids

indemnification for actions taken in bad faith

or through willful misconduct. If any actions

of Mr. Kramer or the Foundation’s directors

(including past actions and the adoption of the

Proposed Resolutions) are determined to have

been made in bad faith or through willful

misconduct, neither Mr. Kramer nor the

Foundation’s directors will be entitled to

indemnification, and they are unlikely to be

entitled to protection under any directors’ and

officers’ liability insurance.

KRAMER V. CULLINAN 7

The Miller Nash Letter also contained a request that

Foundation’s attorney transmit the Letter to Board members.

At the Board meeting, copies of the Miller Nash Letter

were made available. Members of the press were in

attendance. In a prepared statement to the Board, Dr. Cullinan

discussed SOU’s need to act as a “good steward of public

assets,” and expressed her hope for a mutually beneficial

outcome. She stated in part:

While I continue to hope for a mutually

beneficial solution, I must be clear that, if the

board passes some of the resolutions before it

today, SOU must take prompt action to

protect the interests of [Public Radio], its

donors and the University. As you know, SOU

is a public university and has a legal

obligation to be a good steward of public

assets. In light of that obligation, we have

consulted external legal counsel about the

possible consequences of the actions before

the [Public Radio Foundation] board, and we

will follow the advice of counsel in taking

whatever action is warranted should these

resolutions pass. Our attorneys have drafted a

letter outlining the serious potential risks

associated with the proposed resolutions, and

they have asked the [Public Radio]

Foundation’s attorney to share that letter with

you all.

Dr. Cullinan urged SOU and Foundation to address their

issues through mediation, rather than legal action. Still, she

expressed a belief that if the resolutions were passed, “and

8 KRAMER V. CULLINAN

SOU is required to take protective legal action, this situation

will quickly move past the point where we can reach an

amicable resolution.”

After the Board rejected the proposed resolutions,

Foundation and SOU engaged in mediation resulting in an

agreement that was not approved by the Board.

The day following the Board meeting, Dr. Cullinan sent

Kramer a potential non-renewal notice (the March 23 Notice).

The March 23 Notice informed Kramer that his annual

appointment with SOU “may not be renewed for the

upcoming 2012-2013 fiscal year” and that his employment

with SOU “may terminate on June 30, 2012.”

On June 25, 2012, Dr. Cullinan informed Kramer that his

appointment definitely would not be renewed (the June 25

Non-Renewal). The non-renewal was without cause. Kramer

challenged the non-renewal of his appointment and received

a hearing before SOU’s Grievance Hearing Committee (the

Committee). Due to the equivocal phrasing of the March 23

Notice, the Committee determined that Kramer had not

“received proper notice of his non-renewal.” The Committee

recommended that Kramer be given 90 days’ salary and

benefits to remedy the insufficient notice, which Dr. Cullinan

approved and SOU paid. The Committee also confirmed that

SOU policy did not require any reason to be stated in a notice

of non-renewal.

Following completion of the grievance procedures,

Kramer brought suit in federal district court against Dr.

Cullinan, Chancellor Pernsteiner, SOU, and the University

System (collectively the Defendants), asserting various

claims related to his separation, including a civil rights claim

KRAMER V. CULLINAN 9

against Dr. Cullinan for deprivation of a liberty interest

without due process of law.2 Defendants moved for summary

judgment on all claims, including the state law claims, against

Dr. Cullinan and Chancellor Pernsteiner. In a well-reasoned

order, the district court granted summary judgment in favor

of Defendants on all claims, with the exception of the civil

rights claim against Dr. Cullinan for deprivation of a liberty

interest without due process of law.3

Addressing Kramer’s liberty interest claim against Dr.

Cullinan, the district court concluded that the Miller Nash

Letter contained stigmatizing charges against Kramer, that

the charges were made public, and that the charges were

connected to Kramer’s termination. The district court also

held that Kramer’s constitutional right was clearly

established. This claim against Dr. Cullinan is the only issue

remaining for resolution on appeal.

2

Kramer also alleged violation of his property interest without due

process (against Dr. Cullinan), violation of equal protection under the

Fourteenth Amendment (against Chancellor Pernsteiner), and state law

claims of blacklisting (against SOU and Dr. Cullinan), tortious

interference with economic relations, breach of contract, and wage and

hour violation.

3

The court concluded that Kramer “had no protected property

interest in his continued employment with SOU,” that “Pernsteiner’s

actions did not constitute a violation of Kramer’s right to equal

protection,” that there was “no evidence . . . that Defendants acted with the

malicious intent to injure Kramer” through blacklisting, that Kramer was

not entitled to any further remedy under his contract because he “received

ninety days of pay and benefits,” and that the Grievance Committee’s

award was not subject to Oregon’s wage collection statute.

10 KRAMER V. CULLINAN

II. DISCUSSION

Dr. Cullianan contends that she is entitled to qualified

immunity with respect to the claim that she “[v]iolated [n]o

Fourteenth Amendment [r]ight.” Specifically, Dr. Cullinan

maintains that the Miller Nash Letter contained no

stigmatizing charges, that the Letter was not sent in the

course of Kramer’s termination, and that the asserted

constitutional right was not clearly established at the time of

the alleged violation.

“We review a denial of qualified immunity de novo,

viewing the facts and drawing reasonable inferences in the

light most favorable to the party opposing summary

judgment. . . . ” Ames v. King Cty., Wash., 846 F.3d 340, 347

(9th Cir. 2017) (citation omitted).

To determine whether a public official is entitled to

qualified immunity, we consider whether 1) the official

violated a constitutional right, and 2) the “right was clearly

established at the time of the official’s alleged misconduct.”

Id. (citation omitted). It is within our discretion which prong

to address first. See id.

A) Whether Dr. Cullinan violated a constitutional right

The Fourteenth Amendment protects against deprivation

of liberty and property interests without due process of law.

See K.W. ex rel. D.W v. Armstrong, 789 F.3d 962, 972 (9th

Cir. 2015). “A person’s liberty interest is implicated if the

government levels a charge against him that impairs his

reputation for honesty or morality. . . . ” Guzman v. Shewry,

552 F.3d 941, 955 (9th Cir. 2009), as amended (citation and

internal quotation marks omitted). If the government, in the

KRAMER V. CULLINAN 11

course of terminating a person’s employment, publicly

discloses stigmatizing information, the employee is entitled

to a “name-clearing hearing.” Cox v. Roskelley, 359 F.3d

1105, 1110 (9th Cir. 2004).

To establish that she “has a protected liberty interest at

stake,” a plaintiff must demonstrate that: “(1) the accuracy of

the charge is contested, (2) there [was] some public disclosure

of the charge, and (3) the charge [was] made in connection

with the termination of employment . . .” See Guzman,

552 F.3d at 955 (citation and internal quotation marks

omitted).4

Whether a defendant’s statements rise to the level of

stigmatizing a plaintiff is a question of fact. See Campanelli

v. Bockrath, 100 F.3d 1476, 1480 (9th Cir. 1996). We have

previously held that charges made by an employer may be

sufficiently stigmatizing to implicate an employee’s liberty

interest. See, e.g., Guzman, 552 F.3d at 946 (accusing

employee of fraudulently avowing that medical devices were

FDA-approved); Campanelli, 100 F.3d at 1480 (charging

coach with “immoral conduct”); Vanelli v. Reynolds Sch.

Dist., 667 F.2d 773, 776–78 (9th Cir. 1982) (dismissing

teacher for “offensive conduct”).

Here, the Miller Nash Letter explained that if Kramer’s

proposed resolutions were approved by Foundation, SOU

might pursue legal redress. The Miller Nash Letter

specifically mentioned potential legal action against Kramer

individually for breach of fiduciary duty and violations of the

4

We assume, without deciding, that the Miller Nash Letter was sent

in the course of Kramer’s termination. It is undisputed that the other

requirements are met.

12 KRAMER V. CULLINAN

Standards of Conduct for officers of Oregon nonprofit

corporations. The Letter also expressed that in the event the

resolutions were passed, SOU did not “see a clear path

toward indemnity.” As discussed, it was in this context that

the language identified by Kramer as stigmatizing was

used—identifying “actions taken in bad faith or through

willful misconduct” and noting that “intentional acts, waste

or fraud” are generally excluded from coverage. The

difficulty with Kramer’s argument is that the Letter stopped

far short of actually imputing bad faith, willful misconduct,

intentional acts, waste, or fraud to Kramer. Rather, the Letter

stated that if the actions were later determined to constitute

bad faith or willful misconduct, insurance coverage would not

be available. This statement is not analogous to the

affirmative statements we have held to be stigmatizing. See,

e.g., Guzman, 552 F.3d at 946; Campanelli, 100 F.3d at 1480;

Vanelli, 667 F.2d at 776–78.

In Tibbets v. Kulongoski, 567 F.3d 529, 530 (9th Cir.

2009), former employees brought a § 1983 action against the

Governor of Oregon and other state actors alleging violation

of their Fourteenth Amendment due process rights. The

employees maintained that the state made stigmatizing

statements about them in press releases without providing

name-clearing hearings. See id. We reiterated that “a liberty

interest is implicated in the employment termination context

if the charge impairs a reputation for honesty or morality.” Id.

at 535 (citation omitted). We concluded that statements

referencing “strengthening accountability and transparency,”

“ethics,” “honesty,” and “openness” were “more analogous to

cases where honesty . . . has been implicated.” Id. at 537

(alteration omitted).

KRAMER V. CULLINAN 13

In Cox, a terminated employee brought a § 1983 action

alleging in part that county officials deprived him of his

liberty interest in his good name. We focused our analysis on

whether placing a stigmatizing termination letter in an

employee’s personnel file sufficiently publicized the

stigmatizing information. See 359 F.3d at 1109–12. We

accepted as true Cox’s assertion that the notice of termination

in his personnel file contained stigmatizing information,

explaining that “there is no doubt that the termination letter

charged improper conduct and could impair Cox’s reputation

for honesty or morality.” Id. at 1113.

The Miller Nash Letter stopped short of actually imputing

to Kramer any bad faith, willful misconduct, intentional acts,

waste or fraud, and the Letter did not reference the type of

stigmatizing statements we have held to be actionable, i.e.,

those accusing terminated employees of dishonesty,

immorality and the like. Viewing this evidence in the light

most favorable to Kramer, we conclude that the district

court’s characterization of the Letter’s contents as

stigmatizing was erroneous, and Dr. Cullinan was entitled to

qualified immunity.

B) Whether the asserted right was clearly established

Although we elected to first address the existence of a

constitutional violation, we would reach the same result had

we first examined whether the constitutional right asserted is

clearly established. See Pearson v. Callahan, 555 U.S. 223,

236 (2009) (holding that courts may “exercise their sound

discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first”).

14 KRAMER V. CULLINAN

For a constitutional right to be “clearly established” its

“contours [must be] sufficiently definite that any reasonable

official in the defendant’s shoes would have understood that

he was violating it.” Plumhoff v. Richard, 134 S. Ct. 2012,

2023 (2014). Although a case “directly on point” is not

required for a right to be clearly established, “existing

precedent must have placed the statutory or constitutional

question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551

(2017) (citation and internal quotation marks omitted). So

long as existing caselaw “did not preclude” an official from

reasonably believing that his or her conduct was lawful, the

official has a right to qualified immunity. Lane v. Franks,

134 S. Ct. 2369, 2381 (2014).

To evaluate whether a particular question is beyond

debate, a court looks for “cases of controlling authority in

[the plaintiff’s] jurisdiction at the time” or “a consensus of

cases of persuasive authority such that a reasonable officer

could not have believed that his actions were lawful.” Wilson

v. Layne, 526 U.S. 603, 617 (1999). The plaintiff bears the

burden of demonstrating that the right at issue was clearly

established. See Alston v. Read, 663 F.3d 1094, 1098 (9th Cir.

2011).

By the time of Kramer’s termination, it was clearly

established law that an employer charging an employee with

fraud, dishonesty, or immorality is required under the

Fourteenth Amendment to afford that employee a name-

clearing hearing. See Guzman, 552 F.3d at 955; Tibbetts,

567 F.3d at 530; Campanelli, 100 F.3d at 1480. However, that

generalized statement of the law was not sufficient to put Dr.

Cullinan on notice that her particular actions violated

Kramer’s constitutional rights. See Mitchell v. Washington,

818 F.3d 436, 447 (9th Cir. 2016) (holding that it is not

KRAMER V. CULLINAN 15

enough “that the broad principle underlying a right is well-

established”) (citation and alteration omitted). Accordingly,

Kramer’s reliance on Tibbets and Cox as “clearly

establishing” precedent is not persuasive. Those cases did not

definitively place the question of whether the conditional

language in the Miller Nash letter was stigmatizing “beyond

debate.” Plumhoff, 134 S. Ct. at 2023. Indeed, as discussed,

the language in the Letter is not similar to phrasing that we

have found to be stigmatizing.

The district court failed to identify, the parties have not

cited, and we have not found a case where conditional

language was determined to be stigmatizing. Neither has a

case been referenced that found stigmatization in the absence

of a charge of fraud, dishonesty, or immoral conduct. In this

circumstance, Kramer has failed to place the stigmatizing

nature of the Letter “beyond debate.” White, 137 S. Ct. at

551; see also Alston, 663 F.3d at 1098 (placing this burden on

the plaintiff). Reliance on the broad principles espoused in

Tibbets and similar cases clearly establishing the stigmatizing

nature of charges of fraud, dishonesty, or immorality does not

place the question in this case “beyond debate” because the

Letter did not charge Kramer with fraud, dishonesty or

immorality. At worst, the Letter could plausibly be read to

imply a breach of fiduciary duty. But no precedent has been

brought to our attention clearly establishing a charge of

breach of fiduciary duty as stigmatizing.

The Supreme Court has cautioned us against defining

clearly established law “at a high level of generality.” White,

137 S. Ct. at 552. In White, the Supreme Court overruled a

decision of the Tenth Circuit denying qualified immunity

where “it failed to identify a case where an officer acting

under similar circumstances . . . was held to have violated the

16 KRAMER V. CULLINAN

Fourth Amendment.” Id. at 550, 552. The Supreme Court

reiterated that “the clearly established law must be

particularized to the facts of the case.” Id. at 552 (citation and

internal quotation marks omitted). There is simply no clearly

established law “particularized to the [unique] facts of [this]

case.” Id. This is not a case where the stigmatizing nature of

the charge is obvious as in Guzman, 552 F.3d at 946 (fraud),

or Tibbets, 567 F.3d at 530 (dishonesty), or Campanelli, 100

F.3d at 1480 (immorality), or Vanelli, 667 F.2d at 776–78

(“offensive conduct”). Dr. Cullinan’s conduct did not

constitute such a run-of-the-mill Fourteenth Amendment

violation. Instead, this case lacks an explicit charge of fraud,

dishonesty, or immorality, militating against a conclusion that

Dr. Cullinan’s actions violated a “clearly established” right.

White, 137 S. Ct at 552.

III. CONCLUSION

Dr. Cullinan was entitled to qualified immunity. The

Miller Nash Letter did not contain stigmatizing content, and

even if the content were stigmatizing, it was not clearly

established law that charges other than fraud, dishonesty, and

immorality would trigger the requirements of a name-clearing

hearing. The district court decision denying qualified

immunity to Dr. Cullinan is reversed, and the case is

remanded to the district court with directions to enter

summary judgment in favor of Dr. Cullinan.

REVERSED and REMANDED with directions.