Emeldi v. University of Oregon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONICA EMELDI,  No. 10-35551

Plaintiff-Appellant,

v.  D.C. No.

6:08-cv-06346-HO

UNIVERSITY OF OREGON,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the District of Oregon

Michael R. Hogan, District Judge, Presiding

Argued and Submitted

June 9, 2011—Portland, Oregon

Filed March 21, 2012

Before: Raymond C. Fisher, Ronald M. Gould, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Gould;

Dissent by Judge Fisher

3259

EMELDI v. UNIVERSITY OF OREGON 3263

COUNSEL

David Force, Law Offices of David C. Force, Eugene, Ore-

gon, for plaintiff Monica Emeldi.

Denise Gale Fjordbeck, Assistant Attorney General, Office of

the Oregon Attorney General, Salem, Oregon, for the Univer-

sity of Oregon.

OPINION

GOULD, Circuit Judge:

In Jackson v. Birmingham Board of Education, the

Supreme Court held that retaliation by a federally funded edu-

cational institution against someone who complains of gender

discrimination is actionable under Title IX. 544 U.S. 167, 171

(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

3264 EMELDI v. UNIVERSITY OF OREGON

retaliation for having complained of gender-based institu-

tional bias in the University’s Ph.D. program, and gender dis-

crimination 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 Col-

lege 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 popula-

tion ratios.

While the University maintains that no one other than Bul-

lis knew of the memo, Emeldi’s position was that she was told

that all Department faculty received copies; that it was “com-

mon knowledge in the College of Education” that she was dis-

satisfied with the Department’s level of support for women;

that Horner, her dissertation chair, was treating her less favor-

ably than his male graduate students and did not give her the

same support and attention that he gave male candidates; that

EMELDI v. UNIVERSITY OF OREGON 3265

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 neces-

sary changes to produce a dissertation that would be a focused

piece of scholarship.”1 Emeldi attributes the worsening rela-

tionship to Horner’s gender animus.

In October 2007, Emeldi met with University administra-

tors Annie Bentz and Marian Friestad to discuss her worsen-

ing 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 experi-

ence 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

1

The summary judgment record contains evidence of email communica-

tion between Horner and Emeldi in mid-2007. In July 2007, Emeldi sub-

mitted to Horner a “Dissertation Prospectus” that laid out her research

plans. In September 2007, Horner provided feedback on Emeldi’s pro-

posal. Horner’s feedback stated that Emeldi had proposed a “tremendously

interesting project,” and had “done brilliantly in [her] efforts,” but also

expressed concern that “the reader struggles to find the details that can be

examined within a dissertation.”

3266 EMELDI v. UNIVERSITY OF OREGON

him of discriminating against her. While Friestad does not

dispute that she spoke with Horner, her version of the conver-

sation 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 Fri-

estad 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 inade-

quate, arguing that she did not try to recruit two faculty mem-

bers 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 pro-

cedure, which, she says, contributed to her inability to find a

willing faculty member. Unable to complete her Ph.D. with-

out a dissertation chair, Emeldi abandoned her pursuit of the

Ph.D. degree, thus effectively withdrawing from the Univer-

sity.

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

EMELDI v. UNIVERSITY OF OREGON 3267

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 dis-

trict court rejected this argument.

After a period of discovery, the University moved for sum-

mary judgment, which Emeldi opposed. The district court

granted summary judgment for the University on the alterna-

tive grounds that Emeldi did not engage in protected activity

and that she adduced no evidence showing that the Universi-

ty’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. Kel-

ler, 289 F.3d 623, 626 (9th Cir. 2002). “Summary judgment

is warranted when ‘there is no genuine dispute as to any mate-

rial 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

[1] We start with the statutory premise that Title IX of the

Education Amendments of 1972 bars gender-based discrimi-

nation by federally funded educational institutions. It pro-

vides, “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 pro-

gram 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 com-

3268 EMELDI v. UNIVERSITY OF OREGON

plained of sex discrimination” is a form of gender-based dis-

crimination actionable under Title IX. 544 U.S. at 173.

[2] 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 activ-

ity, (b) that he or she suffered an adverse action, and (c) that

there was a causal link between the two. Brown v. City of Tuc-

son, 336 F.3d 1181, 1192 (9th Cir. 2003). We have empha-

sized 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 estab-

lish a prima facie case for Title VII claims on summary judg-

ment 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. CBOCS W., Inc., 474 F.3d

387, 405 (7th Cir. 2007) (noting that “[e]stablishing a prima

facie case” is “not . . . an onerous requirement”).

[3] Once a plaintiff has made the threshold prima facie

showing, the defendant must articulate a legitimate, non-

retaliatory reason for the challenged action. Davis, 520 F.3d

at 1089. If the defendant does so, the plaintiff must then

“show that the reason is pretextual either directly by persuad-

ing the court that a discriminatory reason more likely moti-

vated the employer or indirectly by showing that the

2

See, e.g., Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d

81, 91-92 (2d Cir. 2011) (applying the Title VII framework to a Title IX

retaliation claim); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st

Cir. 2002) (same); Clinger v. N.M. Highlands Univ., Bd. of Regents, 215

F.3d 1162, 1168 (10th Cir. 2000) (same).

EMELDI v. UNIVERSITY OF OREGON 3269

employer’s proffered explanation is unworthy of credence.”

Id. (internal quotation marks and citation omitted).

We stress three reasons for adopting the Title VII frame-

work for Title IX retaliation claims. First, the legislative his-

tory of Title IX “strongly suggests that Congress meant for

similar substantive standards to apply under Title IX as had

been developed under Title VII.” Lipsett v. Univ. of P.R., 864

F.2d 881, 897 (1st Cir. 1988). The House Report provides:

One of the single most important pieces of legisla-

tion which has prompted the cause of equal employ-

ment opportunity is Title VII of the Civil Rights Act

of 1964 . . . . Title VII, however, specifically

excludes educational institutions from its terms.

[Title IX] would remove that exemption and bring

those in education under the equal employment pro-

vision.

H.R. Rep. No. 92-554, at 46 (1972), reprinted in 1972

U.S.C.C.A.N. 2462, 2512.

Second, we have found the Title VII framework useful in

assessing claims of discrimination and retaliation outside the

Title VII context, even where its application is not mandatory.

See, e.g., Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201,

1207 (9th Cir. 2008) (applying the Title VII framework to a

claim under the Age Discrimination in Employment Act);

Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,

754 (9th Cir. 2001) (applying the Title VII framework to an

equal protection claim); Gay v. Waiters’ & Dairy Lunchmen’s

Union, Local No. 30, 694 F.2d 531, 538 (9th Cir. 1982)

(applying the Title VII framework to a claim brought under

42 U.S.C. § 1981).

Third, the Supreme Court has often “looked to its Title VII

interpretations of discrimination in illuminating Title IX.”

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 616 n.1

3270 EMELDI v. UNIVERSITY OF OREGON

(1999). Following this approach, we hold that the Title VII

framework generally governs Title IX retaliation claims.

IV

A

The first requirement of a prima facie case of retaliation is

that the plaintiff engaged in protected activity. Viewing the

evidence presented at summary judgment in Emeldi’s favor,

we hold that Emeldi’s complaints to Bullis and Friestad about

gender-based institutional bias, and to Friestad about Horner’s

unequal treatment of female graduate students, were protected

activity under Title IX.

[4] As an initial matter, we have no doubt that Title IX

empowers a woman student to complain, without fear of retal-

iation, that the educational establishment treats women

unequally. Jackson, 544 U.S. at 174; see also generally Lucy

M. Stark, Exposing Hostile Environments for Female Gradu-

ate Students in Academic Science Laboratories, 31 Harv. J.L.

& Gender 101 (2008). Emeldi’s complaint to Friestad that

there was institutional bias against women in the Ph.D. pro-

gram and that her dissertation chair, Horner, was treating his

male graduate students more favorably than his female gradu-

ate students, is thus unmistakably a protected activity under

Title IX. The protected status of her alleged statements holds

whether or not she ultimately would be able to prove her con-

tentions about discrimination. See Moyo v. Gomez, 40 F.3d

982, 984 (9th Cir. 1994).

Emeldi says that she complained to Friestad about the

Department’s “institutional bias in favor of male doctoral can-

didates, and a relative lack of support and role models for

female candidates.” Illustrating her experience of this “institu-

tional bias” in speaking with Friestad, she says that she “iden-

tified the chair of [her] dissertation committee, Dr. Rob

Horner, as being distant and relatively inaccessible to me.”

EMELDI v. UNIVERSITY OF OREGON 3271

[5] It is a protected activity to “protest[ ] or other wise

oppose[ ] unlawful . . . discrimination.” Moyo, 40 F.3d at 984;

see also Bigge v. Albertsons, Inc., 894 F.2d 1497, 1501 (11th

Cir. 1990). In the Title IX context, “speak[ing] out against sex

discrimination”—precisely what Emeldi says that she did—is

protected activity. Jackson, 544 U.S. at 178. Accordingly, we

hold that Emeldi has alleged facts that, if true, demonstrate

that she engaged in an activity protected by Title IX.

B

The second requirement of a prima facie case of retaliation

is that the plaintiff suffered an adverse action. Viewing the

evidence presented at the summary judgment stage in

Emeldi’s favor, we hold that Horner’s resignation constitutes

an adverse action.

[6] In the Title VII context, the Supreme Court has said

that the adverse action element is present when “a reasonable

[person] would have found the challenged action materially

adverse, which in this context means it well might have dis-

suaded a reasonable [person] from making or supporting a

charge of discrimination.” Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 68 (2006) (internal quotation marks

and citations omitted). We have held the adverse action

requirement was satisfied, for example, when an employee

was forced to use a grievance procedure to get overtime work

assignments that were routinely awarded to others, Fonseca v.

Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 848 (9th Cir.

2004), when an employee was assigned more hazardous work

than her co-workers, Davis, 520 F.3d at 1089-90, and when

an employee was laterally transferred or received undeserved

poor performance ratings, Yartzoff v. Thomas, 809 F.2d 1371,

1376 (9th Cir. 1987).

[7] We will not establish a different rule on adverse action

for Title IX than for Title VII. Women students should not be

deterred from advancing pleas that they be treated as favor-

3272 EMELDI v. UNIVERSITY OF OREGON

ably as male students. A student cannot complete the Univer-

sity’s Ph.D. program without a faculty dissertation chair, and

the loss of a chair is an adverse action.

[8] This sort of adverse action bears analogy to the concept

of constructive discharge, in which a retaliating employer

creates working conditions so “ ‘extraordinary and egregious

[as] to overcome the normal motivation of a competent, dili-

gent, and reasonable employee to remain on the job.’ ”

Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007)

(quoting Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th

Cir. 2000)). Here, although the University did not formally

dismiss Emeldi from the Ph.D. program, as a practical matter,

it rendered her unable to complete the degree. A reasonable

person in Emeldi’s position—someone who had been aban-

doned by her dissertation chair and who was unable, despite

diligent efforts, to secure a replacement chair—could justifi-

ably feel unable to complete the Ph.D. program. A reasonable

person would find these events “materially adverse” insofar as

they “might have dissuaded” such person from complaining

of discrimination in the Department. Burlington N. & Santa

Fe Ry. Co., 548 U.S. at 68. We therefore conclude that

Horner’s resignation was an adverse action.

C

[9] The third requirement of a prima facie case of retalia-

tion is a causal link between the protected activity and adverse

action. “At the prima facie stage of a retaliation case, ‘the

causal link element is construed broadly so that a plaintiff

merely has to prove that the protected activity and the nega-

tive . . . action are not completely unrelated.’ ” Poland, 494

F.3d at 1180 n.2 (quoting Pennington v. City of Huntsville,

261 F.3d 1262, 1266 (11th Cir. 2001)) (alteration omitted).

Emeldi has met this standard. From the record, we conclude

that Emeldi has produced evidence from which a rational fact-

finder could find a causal link between Emeldi’s complaints

EMELDI v. UNIVERSITY OF OREGON 3273

of gender discrimination in the Department and the adverse

actions identified above.

[10] First, the proximity in time between Emeldi’s com-

plaint to Friestad about Horner and Horner’s resignation as

her dissertation chair is strong circumstantial evidence of cau-

sation. See Cornwell v. Electra Cent. Credit Union, 439 F.3d

1018, 1035 (9th Cir. 2006) (“[C]ausation sufficient to estab-

lish the third element of the prima facie case may be inferred

from . . . the proximity in time between the protected action

and the allegedly retaliatory employment decision.” (quoting

Yartzoff, 809 F.2d at 1376)).3

[11] Second, Emeldi has articulated a theory of how

Horner found out about her complaints: Friestad relayed them

to him. Emeldi alleges that she complained of Horner’s gen-

der bias—among other things—at her October 2007 meeting

with Friestad. Friestad admits that she relayed Emeldi’s com-

plaints to Horner, but denies that Emeldi raised concerns

about discrimination at the meeting. Friestad also insists that

3

The dissent suggests that Cornwell is irrelevant because, it urges, we

there rejected a causal connection. But the idea that a causal connection

can be shown by proximity in time between protected activity and adverse

action is the well-established rule followed in many cases. E.g., Dawson

v. Entek Int’l, 630 F.3d 928, 937 (9th Cir. 2011); Bell v. Clackamas Cnty.,

341 F.3d 858, 865 (9th Cir. 2003); Yartzoff, 809 F.2d at 1376; Miller v.

Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986). The application

of that rule in Cornwell does not negate its application here. In Cornwell,

we concluded that Cornwell presented “no evidence raising an inference”

that his demotion was caused by his complaint because there was no evi-

dence that the person who demoted him knew about Cornwell’s complaint

before his demotion. 439 F.3d at 1035. We also concluded that the “gap”

of nearly eight months between Cornwell’s complaint and his termination

was “too great to support an inference” that his termination was caused by

his complaint. Id. Here, by contrast, Friestad “debriefed” Horner about the

content of her discussion with Emeldi, thus “raising an inference” that

Horner knew about Emeldi’s complaint and resigned as a result. See id.

Also in contrast to Cornwell, there was only a short time of a few weeks

between Emeldi’s discussion with Friestad and Horner’s resignation with-

out replacement.

3274 EMELDI v. UNIVERSITY OF OREGON

she did not inform Horner of any allegations of discrimina-

tion. Nonetheless, a reasonable jury, crediting Emeldi’s recol-

lection that she complained specifically to Friestad about

Horner’s favoring of male Ph.D. candidates, could find a

causal link between Friestad’s conversation with Horner and

his resignation from the dissertation chair post. Stated another

way, a jury reasonably could infer that Friestad passed

Emeldi’s complaint on to Horner, and that Horner’s resigna-

tion not long thereafter4 as Emeldi’s dissertation chair was a

response to Emeldi’s complaint.

[12] Third, Emeldi offered evidence that Horner exhibited

gender-based animus in other contexts. See Coghlan v. Am.

Seafoods Co. LLC, 413 F.3d 1090, 1095 n.6 (9th Cir. 2005)

(stating that “evidence establish[ing] the employer’s animus

toward the class to which the plaintiff belongs” is relevant to

proving causation). Specifically, Emeldi said that Horner gave

more attention and support to male students and that he

ignored her and did not make eye contact with her. She con-

tended that, when she attended Horner’s graduate student

group meetings, she was “not on the agenda, or when [she

was] on the agenda, that no substantial/meaningful work [of

hers was] discussed.” She gave specific examples of Horner’s

male students being given opportunities that were not avail-

able to his female students. For example, Horner allegedly

gave one male student access to more office space and better

technology for collecting data than similar female students.

[13] As the above discussion reveals, there is ample cir-

cumstantial evidence to establish causation. Emeldi also

points to other evidence in the record that would support a

jury inference of causation: (1) that Horner resigned as

Emeldi’s dissertation chair without designating or providing

4

Emeldi’s conversation with Friestad took place on or about October 19,

2007. Horner resigned on November 19, 2007. In Horner’s November 20,

2007 email to administrator Mike Bullis, Horner stated that Friestad had

contacted him a few weeks beforehand.

EMELDI v. UNIVERSITY OF OREGON 3275

assistance in securing a replacement chair is circumstantial

evidence of retaliatory intent; (2) that Horner praised Emeldi

on the progress of her dissertation, could, together with other

evidence, support the inference that his stated reasons for

resigning as her dissertation chair were pretextual;5 and (3)

that Emeldi could not secure a replacement dissertation chair,

despite asking fifteen faculty members, is circumstantial evi-

dence that Horner poisoned his colleagues against her.

[14] These items together provide a sufficient basis for a

jury to find that Emeldi’s protected activity brought about

Horner’s resignation.

The dissent argues that Emeldi’s position is based on

impermissible speculation, citing Cafasso v. Gen. Dynamics

C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011). But this

case is nothing like Cafasso. There, we rejected Cafasso’s

claim that her employer eliminated her department and termi-

nated her employment in retaliation for her inquiries about

suspected fraud. Cafasso, 638 F.3d at 1060-61. The employ-

er’s position was that the action was part of a corporate reor-

ganization unrelated to Cafasso’s inquiries; Christopher

Marzilli, the official who terminated Cafasso, testified that he

did not know about her inquiries when he made the reorgani-

zation decision; and “Cafasso admitted in deposition that she

had no reason to disbelieve Marzilli’s account.” Id. at 1060.

Cafasso nevertheless argued for a “cat’s paw” theory of liabil-

ity, see generally Poland v. Chertoff, 494 F.3d 1174, 1182-83

(9th Cir. 2007), which we rejected as speculative. Cafasso,

637 F.3d at 1061. Cafasso would have had to establish “that

one of Marzilli’s subordinates, in response to Cafasso’s pro-

tected activity, set in motion Marzilli’s decision to eliminate

Cafasso’s department and job, and that the subordinate influ-

5

See Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1218 (10th Cir.

2003) (stating that evidence of pretext is also probative of causation). We

note that the email in which Horner praised Emeldi’s dissertation work

also contains criticism of her scholarship.

3276 EMELDI v. UNIVERSITY OF OREGON

enced or was involved in the decision or decisionmaking pro-

cess.” Id. (internal quotation marks, citation, and alteration

omitted). Because Cafasso did not “set forth non-speculative

evidence of specific facts” that this chain of events in fact

occurred, we concluded that to find liability would require

“undue speculation.” Id.

We do not disagree with the principle that mere speculation

cannot raise an issue of fact. But here, by contrast, Emeldi

proffered non-speculative evidence supporting reasonable

inferences of causation. Her declaration states that she com-

plained to Friestad about gender discrimination in the Depart-

ment and, at this stage, her assertions must be accepted as

true. The dissent reaches a contrary conclusion only by disre-

garding tried and true principles governing summary judg-

ment. The dissent first asserts that Emeldi’s complaint to

Friestad that Horner was “distant and relatively inaccessible”

is not a claim of gender bias. However, the correct approach

is to consider Emeldi’s complaint in its context. See T.W.

Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

626, 631 (9th Cir. 1987) (“[T]he court’s ultimate inquiry is to

determine whether the ‘specific facts’ set forth by the non-

moving party, coupled with undisputed background or contex-

tual facts, are such that a rational or reasonable jury might

return a verdict in its favor based on that evidence.” (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986))).

Here, where the complaint that Horner was “distant and rela-

tively inaccessible” immediately followed Emeldi’s complaint

of institutional bias, a jury could reasonably infer that she was

giving an example of the institutional bias that led to inade-

quate support for women Ph.D. candidates, and indeed the

normal reading of her “distant and relatively inaccessible”

criticism of Horner in context is that he was relatively inac-

cessible by contrast to his accessibility for male Ph.D. candi-

dates.6

6

Emeldi’s declaration asserted, “I described one possible cause of that

problem as an institutional bias in favor of male doctoral candidates, and

EMELDI v. UNIVERSITY OF OREGON 3277

The dissent further argues that, even if “gender discrimina-

tion was discussed” between Friestad and Emeldi, it is only

speculative to infer that Friestad relayed Emeldi’s complaints

of discrimination to Horner. Again, the dissent reaches this

conclusion only by ignoring the general rules governing sum-

mary judgment. As noted above, as the nonmoving party

Emeldi was to be believed and reasonable inferences given

her. In her amended declaration, she explicitly states that Fri-

estad told her that Horner was “debriefed” on their discussion.

If we assume Emeldi’s statements are true, a reasonable infer-

ence arises that Friestad “debriefed” Horner about Emeldi’s

complaints of gender discrimination. These facts are sufficient

to state a prima facie case.

D

Because Emeldi established a prima facie case of retalia-

tion, we inquire whether the University has stated a legiti-

mate, non-retaliatory reason for the challenged action, and if

so, whether Emeldi has shown that the reason is pretextual.

See Davis, 520 F.3d at 1089.

[15] The University says that Horner resigned for a proper

reason, that is, because Emeldi did not follow his research

advice. Further, University administrators did not provide a

dissertation chair because, the University says, the faculty

members who Emeldi solicited were unwilling to take Emeldi

as a student for legitimate reasons, such as being unavailable

or unqualified to advise her research. If credited by the jury,

the University states legitimate, non-retaliatory reasons for

Horner’s resignation.

a relative lack of support and role models for female candidates. I men-

tioned the content issues in the [May 2007] Student Advisory Board

Memo and my concern about gender inequity of the faculty. I identified

the chair of my dissertation committee, Dr. Rob Horner, as being distant

and relatively inaccessible to me.”

3278 EMELDI v. UNIVERSITY OF OREGON

[16] But Emeldi has presented evidence from which a rea-

sonable jury could conclude that the University’s account is

pretexutal. For substantially the same reasons we concluded

that Emeldi proffered sufficient evidence of causation, we

likewise conclude that Emeldi’s evidence is sufficient to show

pretext. See Farrell v. Planters Lifesavers Co., 206 F.3d 271,

286 (3d Cir. 2000) (explaining that the causation and pretext

inquiries are often overlapping). The proximity in time

between Emeldi’s complaints of unequal treatment and

Horner’s resignation as Emeldi’s dissertation chair; Friestad’s

admission that she relayed Emeldi’s complaints to Horner;

Horner’s resignation without providing assistance in securing

a replacement chair; other evidence of Horner’s gender-based

animus; Horner’s praise for Emeldi; and Emeldi’s inability to

secure a replacement dissertation chair, all considered

together, could lead a reasonable jury to conclude that

Emeldi’s complaints of unequal treatment, and not Horner’s

dissatisfaction with her research, motivated Horner’s resigna-

tion.7

7

The dissent parts company with the majority by concluding that there

is no genuine dispute of material fact as to whether the adverse actions

suffered by Emeldi were causally related to her complaints of institutional

gender bias or as to whether there was pretext. As we have noted, the dis-

sent’s conclusions ignore traditional rules for applying Rule 56.

Specifically, the dissent complains that Emeldi did not provide other

evidence supporting her assertions. An example concerns Emeldi’s com-

plaint that at Horner’s graduate student group meetings Emeldi was not on

the agenda or if on it her meaningful work was not discussed. These state-

ments are not speculative but based on Emeldi’s personal knowledge and

would be admissible at trial. Emeldi had direct percipient knowledge of

what happened at the graduate student group meetings she attended. The

dissent argues there are no minutes in the record so one cannot verify their

substance, and that “there is no proffered testimony of other students or

faculty members to give credence to Emeldi’s perceptions that Horner was

slighting her (and presumably other women students).” But her declaration

that she “was publicly and chronically ignored in research team meetings

by Rob Horner” generates a genuine dispute of material fact. The dissent’s

insistence on corroborating testimony of others inserts into the law gov-

erning summary judgments a precondition that has never been recognized.

See SEC v. Phan, 500 F.3d 895, 910 (9th Cir. 2007) (holding that district

EMELDI v. UNIVERSITY OF OREGON 3279

[17] Because a reasonable jury could conclude from the

evidence presented at summary judgment that Horner’s resig-

nation was gender-based retaliation, the district court erred in

granting summary judgment.

E

We pause to elaborate on the sufficiency of evidence that

Emeldi presented in response to the University’s motion for

summary judgment. When deciding whether an asserted evi-

dentiary dispute is genuine, we inquire whether a jury could

reasonably find in the nonmovant’s favor from the evidence

presented. See Anderson, 477 U.S. at 251-52 (stating that

summary judgment requires determination of “whether the

evidence presents a sufficient disagreement to require submis-

sion to a jury or whether it is so one-sided that one party must

prevail as a matter of law”).

We cannot say that a reasonable jury would be compelled

to reject liability. We are mindful that the University has

offered evidence that would support a verdict in its favor. For

starters, the testimony of Horner and Friestad contradicts

Emeldi’s account, and emails corroborate the University’s

version of events. Making matters worse for Emeldi, her own

court erred in disregarding declarations as “uncorroborated and self-

serving”); see also 10A Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 2727 (3d ed. 2011) (“[F]acts asserted by the party

opposing the motion [for summary judgment], if supported by affidavits

or other evidentiary material, are regarded as true.”). Like much of the dis-

sent, this point goes to the weight of Emeldi’s evidence, not to its admissi-

bility and sufficiency to withstand summary judgment.

The dissent characterizes as “speculative” Emeldi’s difficulties gaining

a replacement chair of her dissertation committee. But it is not speculative

for Emeldi to say that she asked fifteen faculty members who declined for

various reasons. A reasonable jury could infer that she was blackballed as

a troublemaker because of her claims of institutional gender bias in the

Ph.D. program.

3280 EMELDI v. UNIVERSITY OF OREGON

account at times may appear to be inconsistent. In deposition,

she testified that she “would be speculating” if she said why

she believed Horner’s resignation as her dissertation chair was

gender-based retaliation.8 Further, the record does not disclose

why, despite unsuccessfully soliciting fifteen faculty mem-

bers, Emeldi overlooked two professors who, the University

says, were qualified and available to replace Horner as

Emeldi’s dissertation chair. All of this is to say that the Uni-

versity may have a convincing case at trial. However, that the

University has presented strong evidence in its defense does

not undermine our conclusion that there is a genuine dispute

of factual issues that requires resolution by a jury.

V

Emeldi also challenges federal subject-matter jurisdiction

over her case. The basis of her jurisdictional challenge is that

the University’s original notice of removal mistakenly said

that the action was filed in Linn and Multnomah Counties,

when in fact it was filed in Lane County. This error was cor-

rected by an amended notice of removal, but Emeldi protests

that the amendment was untimely.

“[T]he propriety of removal is determined solely on the

basis of the pleadings filed in state court.” Williams v. Costco

Wholesale Corp., 471 F.3d 975, 976 (9th Cir. 2006) (per

curiam). Where, as here, the state court pleadings establish

federal jurisdiction, an obvious factual error in the notice of

removal is not fatal to jurisdiction. But even if the notice’s

8

While the University characterizes Emeldi’s answer as an admission

that she does not know whether Horner’s resignation was motivated by

retaliatory animus, we note that Emeldi clearly says, elsewhere in her

deposition, that she believes Horner’s conduct was gender-based retalia-

tion. Emeldi might explain to a jury’s satisfaction her anomalous deposi-

tion comment in a way that would be consistent with the University’s

liability. Further, in light of the other evidence that we have noted, it

would be incorrect to view Emeldi’s word choice as conclusive against

her.

EMELDI v. UNIVERSITY OF OREGON 3281

mistaken listing of the county from which the case was

removed were fatal to jurisdiction, the University’s amend-

ment would cure the defect. See Pochiro v. Prudential Ins.

Co. of Am., 827 F.2d 1246, 1248 (9th Cir. 1987) (holding that

insufficient verification of a notice of removal was not fatal

to jurisdiction because the technical error was later corrected

by amended notice).

VI

We reverse the district court’s grant of summary judgment

on Emeldi’s state law claim for the same reasons as Emeldi’s

Title IX claim.9 Also, we reverse the district court’s award of

costs because the University is no longer the prevailing party

under Federal Rule of Civil Procedure 54(d). See Cascade

Health Sol. v. PeaceHealth, 515 F.3d 883, 917 (9th Cir.

2008).

REVERSED and REMANDED.

FISHER, Circuit Judge, dissenting:

I generally agree with much of what my colleagues have to

say about extending the principles and jurisprudence devel-

oped under Title VII to the context of discrimination against

women in colleges and universities under the rubric of Title

IX. Ms. Emeldi, however, has not shown that the problems

she experienced in her Ph.D. program, and particularly with

her supervising faculty advisor, Dr. Horner, were the result of

gender discrimination rather than an unfortunate — but not

9

We need not decide whether, in the context of gender-based retaliation,

the state law cause of action is coextensive with Title IX. Because the dis-

trict court granted summary judgment on Emeldi’s state law claim for the

same erroneous reasons as her Title IX claim, we need not decide the state

statute’s coverage.

3282 EMELDI v. UNIVERSITY OF OREGON

unlawful — breakdown in the academic relationship between

a master professor and a graduate student. The record plainly

reveals Emeldi’s frustration with her lack of progress on com-

pleting her Ph.D. studies and her dissertation, including prob-

lems she attributed to Horner as her dissertation chair. She

became so frustrated that she finally complained to University

administrators. She may have believed these problems and Dr.

Horner’s actions were caused by his bias against her as a

woman. But this is a retaliation case, where it is critical that

she present evidence from which a reasonable jury could find

that Horner (a) knew she believed him to be gender biased,

and (b) resigned in retaliation because she made such an alle-

gation. She simply has not done so, no matter how sympa-

thetic one might be to her academic disappointments.

We need to be cautious when transporting the doctrines that

govern the workplace into the university setting, where the

roles of student and teacher, especially in a Ph.D. program,

are so bound up in personal interactions and subjective judg-

ments. To turn a falling out between a male professor and a

female doctoral candidate into a jury trial over the professor’s

alleged bias against women should not happen unless there is

good evidence to support the charge of discrimination based

on gender. Because Emeldi’s evidence has not met that

threshold, I respectfully dissent.

In sum, Emeldi relies almost entirely on her own specula-

tion and conclusory allegations, without any supporting fac-

tual data. I do not believe she has provided sufficient evidence

of causation to make out a prima facie case of gender-based

retaliation. Even assuming she has made a prima facie case,

she has utterly failed to show that Horner’s stated reason for

resigning as her dissertation chair — that she had come to

view his role as her dissertation chair as “a barrier to her

advancement” — had anything to do with her being a woman

and was merely a pretext.

EMELDI v. UNIVERSITY OF OREGON 3283

I. Framework

The majority joins the First, Second and Tenth Circuits in

applying the Title VII framework to a Title IX retaliation

claim. Maj. Op. 3268 & n.2. I agree that this framework

should apply to Title IX retaliation cases arising in the

employment context. But extending the employment model

wholesale into the teacher-student context — particularly to

a graduate school Ph.D. program — is problematic because

these contexts differ in significant ways. The academic pro-

cess involves highly personal, idiosyncratic relationships that

depend on various professional qualities. This is especially

the case for dissertation chairs and their Ph.D. students, which

are not run-of-the-mill relationships between managers and

employees. A dissertation chair must have expertise in the

student’s area of research as well as be someone with whom

the student can work closely, in a process that by its very

nature requires the professor to be highly critical of the stu-

dent’s work and capabilities. The professor’s role as a disser-

tation chair is voluntary, unlike a business manager whose

very job is to supervise a group of subordinate employees. In

agreeing to supervise a student, a dissertation chair enters a

relationship where the responsibilities run both ways — the

student owes the professor time, intellectual commitment and

work product, and the dissertation chair implicitly agrees to

provide the same in the form of guidance and critical evalua-

tion. Unlike the relationship between a manager and an

employee, each relationship in a Ph.D. program is inherently

unique and highly subjective. Of course, this does not mean

professors can be permitted to discriminate against students

because of their gender or other protected status, but we must

be careful not to open them up to claims of discrimination

based only on unsubstantiated allegations any time there is an

intellectual disagreement about a research project.

Despite these cautions, however, I will accept that we

should apply the Title VII framework to Emeldi’s Title IX

retaliation claims.

3284 EMELDI v. UNIVERSITY OF OREGON

II. Burden-Shifting

To establish a prima facie case of retaliation under Title

VII, and hence under Title IX, a plaintiff must prove (1) she

engaged in a protected activity; (2) she suffered an adverse

action; and (3) there was a causal connection between the

two. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108

(9th Cir. 2008). Once the plaintiff establishes a prima facie

case, the burden shifts to the defendant to set forth a legiti-

mate, nonretaliatory reason for its actions. See id. If the defen-

dant sets forth such a reason, the plaintiff bears the ultimate

burden of submitting evidence showing that the defendant’s

proffered reason is merely a pretext for a retaliatory motive.

See Nilsson v. City of Mesa, 503 F.3d 947, 954 (9th Cir.

2007).

Without accepting the majority’s reasoning, I will assume

that Emeldi has met the first two elements of a prima facie

case — that she engaged in a protected activity and suffered

an adverse action. She has not, however, shown enough to

require a jury to decide whether Professor Horner’s resigna-

tion as her dissertation chair was in retaliation for complaints

she made against him (and the University) of gender discrimi-

nation. I have trouble seeing how her largely subjective and

pervasive speculative interpretations of events are sufficient

to make a prima facie case of causation. But even assuming

she clears that hurdle, I think the University and Horner have

established a legitimate, nondiscriminatory explanation for

Horner’s resignation and Emeldi’s inability to find a replace-

ment chair, and she has failed to present evidence from which

a reasonable jury could find it to be mere pretext. See Davis

v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).

Emeldi complains that Horner resigned as her dissertation

chair and also prevented her from finding a replacement so

she could complete her Ph.D.1 He did this, she contends,

1

The majority’s characterization of Horner as having “poisoned his col-

leagues against her,” Maj. Op. 3275, is especially hollow on this record.

See pp. 3295-96, infra.

EMELDI v. UNIVERSITY OF OREGON 3285

because she sent a memo to University officials that included

a criticism of the underrepresentation of women on the fac-

ulty, then later complained to other officials that Horner’s

treatment of her in class meetings and his supervision of her

thesis reflected his own bias against her as a woman. Horner

and the University vigorously deny these serious allegations

— that Horner was biased against women generally or specif-

ically against Emeldi, and that at the time he resigned he even

knew that Emeldi thought he was. The majority concedes this

is a close case; but it concludes nonetheless that Emeldi has

shown enough to warrant a jury trial. Maj. Op. 3279-80. I

think not. The majority is too generous to Emeldi’s “evi-

dence.” Notably, almost all of her proof of Horner’s gender

bias and retaliatory actions is based on her own suspicions

and speculation. She may in her own mind have believed her

problems were the result of gender bias. The issue, however,

is whether Horner was biased, knew she thought that and

retaliated against her for saying so. Tellingly, Emeldi has not

provided statements from other witnesses who might have

corroborated her speculation, particularly on factual issues

where one would expect her to have at least tried to find

someone who would support her theory of the case. She offers

no explanation or excuse — such as faculty or student wit-

nesses who refused to cooperate by providing sworn state-

ments, or the existence of some “code-of-silence.”

I acknowledge that this is a summary judgment appeal, and

we give substantial leeway to the plaintiff as the losing party

below. Nonetheless, it is well-settled that, “[w]hen the non-

moving party relies only on its own affidavits to oppose sum-

mary judgment, it cannot rely on conclusory allegations

unsupported by factual data to create an issue of material

fact.” Hansen v. United States, 7 F.3d 137, 138 (9th Cir.

1993) (per curiam); see also United States ex rel. Cafasso v.

Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir.

2011) (Gould, J.) (“The evidence adduced by Cafasso estab-

lishes only that this set of events could conceivably have

occurred; it does not give rise to a reasonable inference that

3286 EMELDI v. UNIVERSITY OF OREGON

it did in fact occur. To find liability on this evidence would

require undue speculation. To survive summary judgment, a

plaintiff must set forth non-speculative evidence of specific

facts, not sweeping conclusory allegations.”); Head v. Glacier

Nw. Inc., 413 F.3d 1053, 1059 (9th Cir. 2005) (discussing the

“longstanding precedent that conclusory declarations are

insufficient to raise a question of material fact”).

Emeldi’s claims come up short for these very reasons. She

seeks to blame her failed Ph.D. dissertation effort on her mas-

ter professor’s gender bias and retaliatory motive, transform-

ing academic judgment calls into a civil rights violation. In

this context, I submit there is good reason to insist that the

student provide specific and substantial evidence — not just

speculation and circumstantial inferences that are not attested

to by others and, importantly, are inconsistent with the con-

temporaneous documentary record.

A brief review of the evidence the majority relies on, and

the University’s rebuttal, shows why.

1. May 2007 memo to Bullis. In May 2007, Emeldi wrote

a memo summarizing a meeting between several graduate stu-

dents and Mike Bullis, the Dean of the College of Education.

ER 34-35. That memo, under the heading “Recommenda-

tions,” listed as one of many topics that had been discussed

the following bullet point:

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 popula-

tion ratios.

EMELDI v. UNIVERSITY OF OREGON 3287

SER 56 (brackets and bracketed text in original). This para-

graph is the keystone of Emeldi’s claim that Horner resigned

in retaliation for Emeldi having complained to the University

about gender inequality. Horner, however, in uncontradicted

testimony states that he was never made aware of the contents

of Emeldi’s May 2007 memo before he resigned as her chair,

learning its contents only during this litigation. See SER 5-6,

24. Emeldi has provided no evidence of Horner’s actual

knowledge of the memo’s contents, particularly the gender

issue, before then. At most, she offers only uncorroborated

hearsay from an unidentified source that all faculty got copies

of the memo and, she says, its contents were “common

knowledge.” Maj. Op. 3264.

2. Meeting with Friestad and Bentz. The next critical piece

of evidence in Emeldi’s attempt to link Horner’s resignation

to gender discrimination is a meeting she had with University

administrators Marian Friestad and (possibly) Annie Bentz in

October 2007. ER 37.2 Emeldi says that after there had been

no response or follow-up to her earlier May memo, she

arranged the meeting:

regarding what I perceived to be relative lack of aca-

demic support and related diminishment of financial

support . . . to complete my doctoral degree problem.

I described one possible cause of that problem as an

institutional bias in favor of male doctoral candi-

dates, and a relative lack of support and role models

for female candidates. I mentioned the content issues

in the Student Advisory Board Memo and my con-

cern about gender inequity of the faculty. I identified

the chair of my dissertation committee, Dr. Rob

Horner, as being distant and relatively inaccessible

to me.

2

Neither party has submitted a declaration from Bentz.

3288 EMELDI v. UNIVERSITY OF OREGON

ER 28 (emphasis added). This is the whole of Emeldi’s proof

that sex discrimination was discussed and, more importantly,

of her supposed allegation of gender bias against Horner. She

then theorizes that Friestad told Horner about Emeldi’s allega-

tion, triggering his resignation. Even assuming Emeldi’s

ambiguous characterization of Horner as being “distant and

relatively inaccessible” was meant as an accusation of gender

bias, Friestad certainly did not understand that to be the issue.

She denies that sex discrimination was discussed at all, much

less any accusations of such against Horner. SER 9 at ¶ 4.

Friestad’s account is supported by a contemporaneous doc-

ument that further undermines Emeldi’s recollection of the

discussion. In connection with the meeting, Emeldi sent Frie-

stad a memo entitled “Reference Information for Requested

Conflict Resolution Services,” which chronicled what Emeldi

obviously found to be a frustrating history with the Special

Education Doctoral program from 2004 to October 2007. See

Memorandum dated Oct. 18, 2007, dkt. #37-3. The memo

detailed perceived slights, lack of cooperation or response and

some disagreements or “conflicts” with various faculty mem-

bers, including Horner in his capacity as chair of her disserta-

tion committee and supervisor of her academic work. As the

memo’s “Introductory Comments” section states, however, it

was “not intended as a criticism of the faculty members dis-

cussed. It is intended to describe the series of conflicts that

have resulted in communication failures and the events that

have contributed to a lack of progress made in my program.”

Dkt. #37-3 at 14. Friestad says that was her understanding of

what the meeting was about, and reflects the nature of what

she and Emeldi actually discussed — “what might best be

termed as a series of perceived personality conflicts.” SER 9

at ¶ 4, SER 10. Critically, Friestad states that “Ms. Emeldi did

not discuss any issues related to sexual harassment or discrim-

ination. Nor was there any inference [sic] or indication that

she was concerned about sexual harassment or discrimination

in the Memorandum.” SER 9 at ¶ 4. Reading Emeldi’s memo

confirms Friestad’s account and understanding.

EMELDI v. UNIVERSITY OF OREGON 3289

Although the evidence of a nonmoving party is to be

believed, and all justifiable inferences are to be drawn in her

favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986), “evidence in opposition to the motion that clearly is

without any force is insufficient to raise a genuine issue,” 10A

Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2727 (3d ed. 2011). Emeldi’s “evidence” regard-

ing what took place at the October 19 meeting appears to fall

into this category. Even if Emeldi’s claim that gender discrim-

ination was discussed is credited, however, Emeldi offers only

speculation that Friestad informed Horner of any charges of

discrimination following the meeting.

3. Friestad phone call to Horner. The next critical link in

Emeldi’s chain of causation is Friestad’s phone call to Horner

sometime after the October 19 meeting. With Emeldi’s per-

mission, Friestad called Horner to discuss Emeldi’s concerns

about her lack of progress in the doctoral program, including

Horner’s role in the delay. SER 10.3 Horner acknowledges the

phone call “with Marian Friestad in which she informed me

that Ms. Emeldi had filed a concern related to her moving for-

ward.” SER 20. Freistad did not share with him the contents

of any documents; she “simply told me that there was a con-

cern.” Id. Significantly, Emeldi’s counsel did not ask Horner

at his deposition whether Friestad mentioned gender bias.

And Friestad, as quoted above, denies that she and Emeldi

ever discussed gender discrimination at any of their meetings.

SER 8-11. On this record, there is no evidence that Horner

understood from the phone call that Emeldi’s “concerns”

about her progress and Horner’s role involved gender bias.

Equally important, although Horner readily acknowledges

that Emeldi’s concerns about him ultimately led to his resig-

nation, he said his decision came only after receiving an email

3

Friestad asked Emeldi “at multiple points, including at the end of the

meeting, if she wanted [her] to contact Dr. Horner and discuss her con-

cerns about her progress in the doctoral program. Ms. Emeldi gave [her]

permission to do so.” SER 9-10 at ¶ 5.

3290 EMELDI v. UNIVERSITY OF OREGON

memo from Emeldi on November 12, well after Friestad’s

phone call. SER 20-23.

4. Emeldi’s November 2007 memo/email exchanges with

Horner. Horner attributes his decision to resign as Emeldi’s

dissertation chair, and his timing, to a November 12 email

memo he received from Emeldi, see SER 63-68, “identifying

me as a barrier to her advancement and indicating that she

was concerned about my unwillingness to move her doctoral

committee forward”; “she was significantly concerned that I

was a barrier to her advancement. That is not a role I am inter-

ested in playing, therefore it seemed that the logical step was

for her to work with someone who would be able to promote

her objectives. I chose to stop being the chair of her disserta-

tion committee.” SER 21-23.4 Horner’s description of the

lengthy and detailed memo is accurate; and — consistent with

Friestad’s account of her initial and subsequent meetings with

Emeldi — it contains no suggestion of gender discrimination.

Emeldi wrote to Horner, “Though support has been requested,

and you have acknowledged my patience in waiting for your

involvement, we have, to date, not collaborated to progress

my dissertation research forward.” SER 67. She continued,

“The extinction plan that’s been implemented over the last

year particularly has prevented me from accessing support in

weekly research meetings to progress dissertation prerequisite

and project work and from directly communicating, accessing

support, and collaborating with you, committee, and other

faculty members causing my program to be unnecessarily

extended.” Id. On November 19, Horner sent Emeldi the fol-

lowing email in response:

I am sorry you were unable to come to the research

meeting today, because I think it is important for us

to resolve the issues you frame in your message

without delay. . . . [¶ ] Your message is clear that

4

He noted that though he “chose to stop being the chair of her disserta-

tion committee,” SER 23, he “stayed as her program advisor.” SER 21.

EMELDI v. UNIVERSITY OF OREGON 3291

you see my feedback as a barrier to your progress,

and not helpful in moving your dissertation forward.

[¶ ] I have great respect for your personal and pro-

fessional judgement and I do not wish to be a barrier

to your advancement. [¶ ] At the same time, I think

we have differences in our view of your research

plan. [¶ ] After some serious thought, I believe the

most logical move is for you to work with an advisor

who is more in tune with your research vision. As

such I resign as of today as chair of your dissertation

committee.

SER 61-62. Significantly absent from this contemporaneous

documentary exchange between Emeldi and Horner (like

Emeldi’s memo to Friestad) is any hint of gender discrimina-

tion being at issue or having been surfaced. See SER 20-23;

see also dkt. #54. Rather, Horner describes the intellectual

and interpersonal conflicts that led to his resignation:

Ms. Emeldi developed a dissertation proposal but

was dissatisfied with my critiques about the scope

and substance of her proposal. In my judgment Ms.

Emeldi’s dissertation proposal was insufficiently

developed to allow presentation to a dissertation

committee. The conceptual foundation was not

established, and her methodology would not have

met the standards for a doctoral dissertation.

SER 5 at ¶ 2. Horner explains that Emeldi “did not respond

well to [my criticisms]. . . . [S]he resisted my suggestions, and

went to University administration complaining that I was an

obstacle to her progress.” SER 5 at ¶ 3.

I submit that, even making allowances for Emeldi’s need in

some instances to rely on circumstantial evidence, and giving

her the benefit of permissible inferences on summary judg-

ment, there is nothing but speculation to supply the vital miss-

ing element in Emeldi’s gender discrimination claim: that the

3292 EMELDI v. UNIVERSITY OF OREGON

cause of and true reason for Horner’s resignation (and his

alleged undermining of finding a replacement chair) was

gender-based retaliation. Not only do Horner and Friestad

deny it, the documents created at the time corroborate them.

See Maj. Op. 3277. Nonetheless, leveraging off her disputed

complaint about Horner’s gender bias to Friestad, Emeldi now

theorizes that Horner’s resignation as her chair had to be

because Friestad reported that accusation in her call to

Horner. However, when asked why she believed Horner’s res-

ignation was “gender based retaliation,” she candidly — and

correctly — replied, “I would be speculating. I think that’s a

question for Rob Horner.” SER 53. See Maj. Op. 3280 & n.8.

The majority, however, believes a jury should decide this

question. To justify allowing Emeldi to get that far, it cites

three items of “ample circumstantial evidence” to establish

causation and pretext. Maj. Op. 3274. The first and “strong”

circumstance is the proximity in time between Emeldi’s pro-

tected conduct — her assumed complaint of gender discrimi-

nation — and Horner’s resignation. Maj. Op. 3273 (citing

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1035

(9th Cir. 2006)). Of course, in Cornwell we held “the record

did not contain evidence that Sharp knew about Cornwell’s

complaint before Sharp demoted him, and thus Cornwell’s

complaint could not have caused Cornwell’s demotion.”

Cornwell, 439 F.3d at 1035. Likewise, that is the record here.

Emeldi has no evidence that Horner had any idea she was

accusing him of gender discrimination.

To close this evidentiary gap, the majority credits Emeldi’s

“theory” on appeal of how Horner learned of her supposed

gender-bias complaints about him. In her brief to this court,

Emeldi speculates that “[a]s soon as [she] left the discussion

with Friestad, [Friestad] called Horner and told him that

[Emeldi] had accused him of discriminating against her.” Bl.

Br. 6. She contends that because of that contact, Horner

resigned as her dissertation chair “that very day.” Bl. Br. 23.

EMELDI v. UNIVERSITY OF OREGON 3293

In fact, events did not move anywhere near that fast.5 As doc-

umented by the record, Horner resigned on November 19,

after receiving Emeldi’s long email memo on November 12.

See SER 21. As noted above, the Emeldi-Friestad meeting

was on October 19, with the Friestad-Horner phone call

occurring shortly after. The evidence shows that almost a

month intervened between the call and Horner’s resignation,

during which time Horner and Emeldi had rather extensive

email contacts, providing a contemporaneous documentary

record that confirms Horner’s nonpretextual explanation for

his resignation.

Regardless of the timeline, Horner does not dispute that he

resigned because of Emeldi’s complaints about delays in her

dissertation’s progress — as relayed in general terms by Frie-

stad and supplemented by Emeldi’s email memo. But he does

dispute — and there is no credible objective evidence to the

contrary — that his resignation had anything to do with her

being a woman rather than a grad student who had come to

view him as a “barrier to her advancement.” SER 21.

The majority tries to bolster Emeldi’s case by citing to

Horner’s supposed acts of gender bias “in other contexts,” all

of which are anecdotal, based largely on hearsay and unsup-

ported other than by Emeldi’s own accounts. Maj. Op.

3264-65, 3274-75. For example, the majority credits Emeldi’s

assertion “that Horner gave more attention and support to

male students and that he ignored her and did not make eye

contact with her.” Maj. Op. 3274.6

The majority also credits Emeldi’s complaint that when she

5

Emeldi’s counsel’s willingness to exaggerate the documented facts

undermines the credibility of counsel and his client.

6

The majority cites only Emeldi’s own speculative statement of facts in

opposition to the University’s motion for summary judgment, ER 36, and

her statements in the Notice of Grievance, dkt. #53 at 27-28, which she

filed against Horner on January 16, 2008, two months after his resignation.

3294 EMELDI v. UNIVERSITY OF OREGON

attended Horner’s graduate student group meetings, she was

“not on the agenda,” or when she was on the agenda, none of

her “substantial/meaningful work” was discussed. Maj. Op.

3274. Once again, there is no proffered testimony of other stu-

dents or faculty members to give credence to Emeldi’s per-

ceptions that Horner was slighting her (and presumably other

women students). The majority excuses this shortcoming

because Emeldi “had direct percipient knowledge of what

happened at the graduate student group meetings she attend-

ed.” Op. at 3278 n.7. But this misses the point. She and the

majority rely on these “facts” to prove Horner’s actual

gender-biased behavior — discrimination that took place not

in one-on-one dealings between Horner and Emeldi where it

would have to be a “he said, she said” dispute, but in front of

many potential witnesses. Summary judgment standards do

not require us to turn a blind eye to Emeldi’s failure to make

her affirmative case or to rebut the defendants’ nonpretextual

explanations with anything other than her own characteriza-

tions and perceptions.

This failure is particularly troubling with respect to what

the majority invokes as Emeldi’s “specific examples of

Horner’s male students being given opportunities that were

not available to his female students,” such as access to office

space and technology. Maj. Op. 3274. The majority refers

only to Emeldi’s declaration; Emeldi cites nothing at all. She

describes favorable treatment given to four specified male stu-

dents, and names a female professor and a female student,

both of whom she says complained of “subordinating” and

“derogatory” treatment resulting from this disparity. Dkt. #74

at 16-18. She also says these disparities were “observed by

doctoral students interviewed for the Student Advisory Board

Memo.” Id. at 16. But she does not offer declarations from

any of these sources, or any direct evidence of Jason Naran-

jo’s premature “assist[ance] to get a tenure-track position,”

Scott Ross’ “three office spaces” and “number of palm pilots”

or Scott Yamamoto’s “several opportunities to work on

research projects.” Id. at 16-17. This evidence, which Emeldi

EMELDI v. UNIVERSITY OF OREGON 3295

has not bothered to corroborate, is too anecdotal and lacking

in specific evidentiary support to raise any reasonable infer-

ence that Horner was gender biased and actively discrimi-

nated between his male and female students.

Perhaps the most glaring example of Emeldi’s speculative

accusations, credited by the majority as supportive “other evi-

dence” of Horner’s retaliatory intent, Maj. Op. 3274-75,

relates to her inability to secure a replacement chair despite

asking 15 faculty members — which she attributes to

Horner’s gender-based animus against her. The majority cites

Emeldi’s contention that after his resignation, Horner “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.”

Maj. Op. 3266.

Other than Emeldi’s own speculation and hearsay, neither

of which can establish a disputed issue of material fact, the

evidence that this statement was made is nonexistent. The

“evidence” is actually the excerpt of record Emeldi submitted

in this appeal (ER 37-38), which in turn is the statement of

facts Emeldi submitted in opposition to the University’s sum-

mary judgment motion in the district court. There Emeldi

stated: “Horner announced to other faculty . . . that plaintiff

should not be granted a Ph.D. degree but should be directed

into a program for the lesser Ed.D. degree. Horner has never

discussed that change with plaintiff.” ER 37-38. As support,

she cites to her own declaration, in which she alleges, “[there

was a] November 27, 2007 faculty meeting in which [Horner]

advocated that I obtain a[ ] D.Ed. rather than a Ph.D. . . . Pro-

fessor Cindy Herr described this statement by Horner to me

immediately after it occurred, but I had never heard such a

suggestion previously from Horner or anyone else.” Dkt. #54

at 8. Where is the corroboration from Cindy Herr? All we

have is a two-page excerpt of Herr’s deposition. See dkt. #56-

2. Nowhere does Herr testify that Horner made these state-

ments, nor does she testify that she told Emeldi that Horner

3296 EMELDI v. UNIVERSITY OF OREGON

made these statements. Indeed, nothing in Herr’s excerpted

testimony refers to the Ed.D. program, a faculty meeting or

even Horner at all. Emeldi’s failure to ask Herr to confirm her

alleged statement to Emeldi discredits the accusation against

Horner as completely unfounded and certainly not “material

to Emeldi’s retaliation claim.”

I am sympathetic to the majority’s belief that the University

could have done more for Emeldi in helping her find a

replacement. See Maj. Op. 3266. That does not establish gen-

der discrimination as the motivation for Horner’s actions or

the University’s shortcomings, however. To posit, as the

majority does, that she was unable to secure a replacement

chair because Horner “poisoned” his colleagues against her is

simply not credible on this record. Maj. Op. 3275. Not only

has Emeldi failed to support Herr’s alleged statement, she has

presented no evidence from (or about) any of the 15 faculty

members she asked, or from anyone else, suggesting that

Horner did anything to dissuade them from acting as her

chair. Rather, emails she placed in the record show that those

she asked declined for a number of legitimate reasons: they

did not believe they had the appropriate specialization to

oversee her research; they were already overextended with

other projects; they were ineligible to serve as chairs due to

University policies. One was hesitant to make a commitment

due to health issues. One had moved to Kansas. Another was

retired. See dkt. #48 at 16-26. Further, these emails show that

many of the faculty members offered to meet with her to dis-

cuss her project, and then wished her well when they deter-

mined they were unable to serve as her chair. Some referred

her to other faculty members, and several volunteered to serve

on her dissertation committee. These are not responses one

would expect from colleagues who had been “poisoned.” And

equally notable, as the majority concedes, “the record does

not disclose why, despite unsuccessfully soliciting fifteen fac-

ulty members, Emeldi overlooked two professors who, the

University says, were qualified and available to replace

Horner as Emeldi’s dissertation chair.” Maj. Op. 3280.

EMELDI v. UNIVERSITY OF OREGON 3297

Finally, the majority uses Horner’s earlier praise for

Emeldi’s work as evidence that his explanation for resignation

is pretextual. See Maj. Op. 3275. To do so seems a pure Catch

22. Had Horner never praised Emeldi, undoubtedly she (and

the majority) would cite that as evidence of his longstanding,

persistent gender bias. Horner praised Emeldi’s work at vari-

ous points in their relationship, but he also critiqued her work,

as the majority itself notes. See Maj. Op. 3265 n.1, 3275 n.5.

One would expect nothing less from a dissertation committee

chair. Part of the chair’s role is to offer the student advice and

criticism on her dissertation’s weaknesses as well as

strengths, as well as on her own academic performance. That

Horner did just that does not show that his stated reason for

resigning as her advisor after she told him he was “a barrier

to her advancement” was pretextual. SER 21.7

In sum, Emeldi’s case should fail because she has not

shown enough to warrant a jury’s finding causation. But even

if we give her the benefit of doubt on that requirement, she

certainly has not shown enough to rebut as mere pretext

Horner’s reason for resigning as her dissertation chair. The

evidence, including Friestad and Horner’s testimony and

Emeldi’s own documented complaints, makes it clear that

Horner’s nondiscriminatory explanation was genuine: he

resigned as dissertation chair because of intellectual and inter-

personal incompatabilities with his Ph.D. candidate. Emeldi’s

unsupported statements and speculation do not overcome this

evidence, and she has not offered corroborative evidence that

7

In his declaration, Horner describes criticism he gave Emeldi leading

up to his resignation: “In my judgment Ms. Emeldi’s dissertation proposal

was insufficiently developed to allow presentation to a dissertation com-

mittee. The conceptual foundation was not established, and her methodol-

ogy would not have met the standards for a doctoral dissertation. I pointed

these and other issues out to her in a memo I wrote to her on September

7, 2009 . . . . I informed her that she was not yet ready to call her disserta-

tion committee together because her proposal was not yet functional.”

SER 5 at ¶ 2.

3298 EMELDI v. UNIVERSITY OF OREGON

was available to her that would create triable issues of causa-

tion and pretext. We should not allow this case to go forward.

Title IX’s worthy antidiscrimination objectives notwith-

standing, to let Ms. Emeldi’s claims go to a jury will serve

only as a precedent-setting example of how little it takes to

turn a failed supervisory relationship between a professor and

his Ph.D. candidate into a federal case of gender discrimina-

tion. The district court properly granted summary judgment.

I respectfully dissent.