The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHIXAPKAID DONALD MICHAEL No. 18-35287
PAVEL,
D.C. No. 6:16-cv-00819-AA
Plaintiff-Appellant,
v. MEMORANDUM*
UNIVERSITY OF OREGON; DOUG
BLANDY; PENELOPE DAUGHERTY;
RANDY KAMPHAUS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted May 14, 2019
Portland, Oregon
Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.
Chixapkaid Pavel appeals from the district court’s grant of summary
judgment to the individual named defendants on his 42 U.S.C. § 1983 claims based
on qualified immunity, and the district court’s grant of summary judgment to the
University of Oregon and all individual defendants on his Title VII claims and his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
First Amendment retaliation claim. The facts are well-known to the parties; we
need not repeat them here. We review the district court’s grant of summary
judgment de novo. Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722,
730 (9th Cir. 2001). We affirm.
First, the district court properly granted summary judgment to the individual
defendants, finding Pavel’s § 1983 claims barred by qualified immunity. A state
official is entitled to qualified immunity unless a plaintiff pleads facts showing “(1)
that the official violated a statutory or constitutional right, and (2) that the right
was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-
Kidd, 563 U.S. 731, 735 (2011) (citation omitted). Here, Pavel’s procedural and
substantive due process claims fail on the second prong.
“[T]he law regarding procedural due process claims can rarely be considered
clearly established at least in the absence of closely corresponding factual and legal
precedent.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971,
983 (9th Cir. 1998) (internal quotation marks omitted). However, “[t]he base
requirement of the Due Process Clause is that a person deprived of property be
given an opportunity to be heard at a meaningful time and in a meaningful
manner.” Id. at 984 (internal quotation marks omitted). “The tenured public
employee is entitled to oral or written notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity to present his side of
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the story.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). A
“public employee dismissable only for cause [is] entitled to a very limited hearing
prior to his termination, to be followed by a more comprehensive post-termination
hearing.” Gilbert v. Homar, 520 U.S. 924, 929 (1997).
Pavel has not presented any closely corresponding factual and legal
precedent to the circumstances where a formal administrative and police complaint
had been made by a student about a tenured professor who had access to a robust
post-termination process. Those due process requirements which are clearly
established were satisfied here: Pavel received oral communications about the
charges made against him, as well as a written summary of the findings from the
University’s investigation, and was given opportunities to respond. These facts
balanced with the robust post-termination process available to him, satisfy the
clearly established requirements of due process. The additional and nuanced due
process rights which Pavel desires are not clearly established in the law.
Consequently, the individual defendants merit qualified immunity.
Even if Pavel could demonstrate that the individual defendants’ actions
violated his substantive due process rights, defendants are still entitled to qualified
immunity because Pavel failed to demonstrate the law on “stigma” and “plus” was
clearly established. A “stigma” and “plus” claim is one in which “the state action
not only caused the stigma of a damaged reputation, but also . . . deprived the
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plaintiff of a protected liberty or property interest.” WMX Techs., Inc. v. Miller,
197 F.3d 367, 376 (9th Cir. 1999). Whether the same actor must publicize the
stigmatizing information and deprive the plaintiff of his protected property interest
has not been clearly established in the law. As no clearly established law was
violated here, qualified immunity applies.
Pavel argues his due process rights were eroded by the application of
Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir. 1992). In Armstrong, this court
held that the availability of an arbitration process under a collective bargaining
agreement satisfies due process even where the union eventually declines to pursue
arbitration, “provided of course, those procedures satisfy due process.” Id. at 950–
51. Armstrong controls here. As the district court correctly noted, Pavel’s
grievance with the lack of post-termination process lies with his union and cannot
be brought against defendants.
Second, on a motion for summary judgment, we evaluate Pavel’s Title VII
racial and gender discrimination claims using the three-part burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this framework, a plaintiff may establish a prima facie case of
discrimination by demonstrating that: (1) he is a member of a protected class; (2)
he was qualified for his position and performing satisfactorily; (3) he experienced
an adverse employment action, and (4) similarly situated individuals outside his
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protected class were treated more favorably, or other circumstances surrounding
the adverse employment action give rise to an inference of discrimination. Hawn v
Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1156 (9th Cir. 2010). If a plaintiff establishes
a prima facie showing of discrimination, “the burden of production, but not
persuasion, then shifts to the [defendant] to articulate some legitimate, non-
discriminatory reason for the challenged action.” Id. at 1155 (internal quotation
marks and punctuation omitted). “If defendant meets this burden, plaintiff[] must
then raise a triable issue of material fact as to whether the defendant’s proffered
reasons for their termination[] are mere pretext for unlawful discrimination.” Id.
Pavel failed to establish a prima facie case of either racial or gender
discrimination because he did not allege facts demonstrating he was treated
differently from similarly situated employees or that other circumstances
surrounding his termination could give rise to an inference of discrimination. Id. at
1156. However, even if he had established a prima facie case, the defendants
articulated a legitimate, non-discriminatory reason for Pavel’s termination: he was
terminated for violating the University’s sexual harassment policy. Pavel failed to
offer any evidence that could raise a triable issue of material fact that the
University’s articulated reason for his termination was pretextual. Summary
judgment on Pavel’s discrimination claims was therefore appropriate.
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Finally, Pavel contends that the University terminated his employment in
retaliation for First Amendment protected statements he made about the firing of a
Native American professor two years prior to his termination. To establish a prima
facie case of retaliation, a plaintiff must demonstrate (1) he spoke on a matter of
public concern; (2) he spoke as a private citizen; and (3) the “protected speech was
a substantial or motivating factor” in his termination. Eng v. Cooley, 552 F.3d
1062, 1070 (9th Cir. 2009). If the plaintiff can make a prima facie showing of
retaliation, the defendants are nonetheless entitled to summary judgment if they
demonstrate they “would have reached the same adverse employment decision
even in the absence of the employee’s protected conduct.” Id. at 1072 (internal
citations and punctuation omitted).
Pavel has not shown that his protected statements were “a substantial or
motivating factor” in his termination. Id. at 1070. His only evidence of retaliation
is speculation that one defendant (who was not a decisionmaker in the termination
process) had animosity against Pavel because of statements Pavel had made two
years earlier. Ultimately, Pavel has failed to offer evidence demonstrating that any
defendant responsible for the termination decision was motivated by his protected
speech. However, even if we could infer causation from the evidence presented,
defendants would be entitled to summary judgment because they demonstrated
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they would have terminated Pavel even in the absence of his protected statements.
Thus, summary judgment was appropriate.
AFFIRMED.
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