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March 2012 Archives

Ninth Circuit Clarifies Title IX Gender-Related Retaliation Framework

In Emeldi v. University of Oregon, 2012 U.S. App. LEXIS 5864 (9th Cir. 2012), the Ninth Circuit Court of Appeals issued a decision which applies the analytical framework from retaliation claims under Title VII to gender-related retaliation under Title IX.  Full text of the opinion can be found here: http://www.ca9.uscourts.gov/datastore/opinions/2012/03/21/10-35551.pdfEmeldi was a doctoral student in the University of Oregon's College of Education, Department of Special Education.  While a student at UO, Emeldi complained of gender-based discrimination in the form of insufficient support for female students and a lack of female role models in the Special Education department.In addition, Emeldi submitted evidence that her dissertation chair treated her less favorably than male students.  As a result, Emeldi's relationship with her dissertation chair soured and she eventually complained to a pair of UO administrators about the disparate treatment she suffered.  After making the complaint, Emeldi's dissertation chair resigned, and according to Emeldi, recommended that Emeldi not be allowed to complete the Ph.D. program but instead complete a less-prestigious Ed.D. program.Emeldi then sought a new dissertation chair, but presented evidence that she was unable to find a replacement.  Emeldi eventually abandoned pursuit of her Ph.D., effectively withdrawing from the program.On review of a grant of summary judgment to UO, the Ninth Circuit acknowledged that Title IX bars gender-based discrimination from federally funded educational institutions and that retaliation against a person who has complained of sex discrimination is a form of gender-based discrimination prohibited by Title IX.The Court then went on to set forth the standard, for the first time in the Ninth Circuit, that a plaintiff must prove in order to prevail under a Title IX retaliation claim.  The Court joined its "sister circuits" - the First and Second Circuits - in holding that the framework of Title VII retaliation analysis is applicable to Title IX gender retaliation claims.In order for a plaintiff to prevail under this analysis, a plaintiff must first make out a prima facie case (Latin term lawyers like to use meaning "at first blush" or "at first appearance") of gender retaliation by showing: (a) that he or she was engaged in protected activity, (b) that he or she suffered an adverse action, and (c) that there was a causal link between the two. This initial burden on the plaintiff is minimal and need not "even rise to the level of preponderance of the evidence."If plaintiff carries the minimal burden of establishing a prima facie case, then the defendant must articulate a legitimate, non-retaliatory reason for the challenged action.Plaintiff then must submit evidence to establish that the legitimate, non-retaliatory reason set forth by the defendant is pretextual - in other words - that a discriminatory reason more likely motivated the defendant rather than the nondiscriminatory reason set forth by the defendant.  The Court acknowledged that oftentimes substantial overlap will exist between the evidence presented to establish a prima facie case of discrimination and the showing required for establishing pretext.The Court then analyzed whether Emeldi satisfied her burden of establishing a prima facie case.  The Court found, viewing the evidence in a light most favorable to Emeldi as required for ruling on a motion for summary judgment, that "Title IX empowers a woman student to complain, without fear of retaliation, that the educational establishment treats women unequally."  Emeldi presented evidence of making such complaints and therefore she had engaged in protected conduct - the first prong of a prima facie case.Next, the Court found that Emeldi suffered adverse action, the second prong, because under the circumstances of this case she justifiably withdrew from the program when she was unable to secure a replacement dissertation chair.As for the third prong, a causal link between the adverse action and the protected act, the Court found that, at the prima facie stage, the causal requirement is construed broadly so that a plaintiff must show that the protected activity and the adverse action are not "completely unrelated."  Emeldi was able to show causal connection in three ways: (1) establishing temporal connection between her complaint and her dissertation chair's resignation; (2) showing that her dissertation chair had in fact been informed of her complaints of gender discrimination; (3) submitting evidence that her dissertation chair had exhibited gender-based animus in other contexts.UO then submitted evidence to establish that Emeldi was unwilling to follow the research advice of her dissertation chair leading to his resignation.Emeldi responded with evidence of pretext.  The Court found that the same evidence which established the prima facie case of discrimination, when considered in its totality, also served to establish evidence of pretext.As a result, the Court reversed the decision of the trial court granting UO summary judgment.  It should be noted that the Court acknowledged that UO presented substantial evidence which could lead a reasonable jury to find against Emeldi at trial, including various accounts that contradicted her version of events, but that for purposes of summary judgment, Emeldi had set forth genuine issues of material fact preventing entry of summary judgment before trial.The Emeldi case is helpful in clarifying the analysis under which gender-based retaliation claims in the Title IX context are to be decided in courts subject to the Ninth Circuit's jurisdiction.

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