Ronald H. Kramer, Plaintiff-Appellee,
Mary Cullinan, Defendant-Appellant, and Southern Oregon University; Oregon University System; George Pernsteiner, Defendants.
and Submitted June 7, 2017 Portland, Oregon
from the United States District Court for the District of
Oregon Owen M. Panner, District Judge, Presiding D.C. No.
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
Before: A. Wallace Tashima, Ronald M. Gould, and Johnnie B.
Rawlinson, Circuit Judges.
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.
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
directions to enter summary judgment in favor of Dr.
RAWLINSON, CIRCUIT JUDGE
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
employed Kramer on an annual appointment basis in a dual
role, as Executive Director of Jefferson Public Radio (Public
Radio) and as Executive Director of a related foundation, the
JPR Foundation, Inc. (Foundation). Kramer reported directly
to Dr. Cullinan.
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
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
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.
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 ...