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Kramer v. Cullinan

United States Court of Appeals, Ninth Circuit

January 3, 2018

Ronald H. Kramer, Plaintiff-Appellee,
v.
Mary Cullinan, Defendant-Appellant, and Southern Oregon University; Oregon University System; George Pernsteiner, Defendants.

          Argued and Submitted June 7, 2017 Portland, Oregon

         Appeal from the United States District Court for the District of Oregon Owen M. Panner, District Judge, Presiding D.C. No. 1:13-cv-00340-PA

          Brenda K. Baumgart (argued), Amy Joseph Pedersen, Andrea H. Thompson, and Rachel C. Lee, Stoel Rives LLP, Portland, Oregon, for Defendant-Appellant.

          Christine N. Moore (argued) and Richard S. Yugler, Landye Bennett Blumstein LLP, Portland, Oregon, for Plaintiff-Appellee.

          Before: A. Wallace Tashima, Ronald M. Gould, and Johnnie B. Rawlinson, Circuit Judges.

         SUMMARY[*]

         Civil Rights

         The panel reversed the district court's order, on summary judgment, denying qualified immunity to Dr. Mary Cullinan, the former-President of Southern Oregon University, in an action filed by Ronald Kramer alleging that Dr. Cullinan violated his liberty interest by releasing stigmatizing information in connection with his termination.

         The panel held that Dr. Cullinan was entitled to qualified immunity. The panel held that a letter drafted by counsel concerning Kramer's employment, which became publicly available, did not contain stigmatizing content. The panel held that the letter stopped short of actually imputing to Kramer any bad faith, willful misconduct, intentional acts, waste or fraud, and the letter did not reference the type of stigmatizing statements that this Circuit has held to be actionable, i.e., those accusing terminated employees of dishonesty, immorality and the like. Viewing this evidence in the light most favorable to Kramer, the panel concluded that the district court's characterization of the letter's contents as stigmatizing was erroneous, and that Dr. Cullinan was entitled to qualified immunity. The panel further held that even if the content were stigmatizing, it was not clearly established law that charges other than fraud, dishonesty, and immorality would trigger the requirements of a name-clearing hearing. The panel therefore reversed the district court's decision denying qualified immunity and remanded with directions to enter summary judgment in favor of Dr. Cullinan.

          OPINION

          RAWLINSON, CIRCUIT JUDGE

         Dr. Mary Cullinan (Dr. Cullinan), former-President of Southern Oregon University (SOU), appeals from the district court's denial of her motion for summary judgment seeking qualified immunity in an action filed by Ronald Kramer (Kramer) alleging that Dr. Cullinan violated his liberty interest by releasing stigmatizing information in connection with his termination. Because it is unlikely that the information released was stigmatizing, and because it was not clearly established as a matter of law that the information was stigmatizing, Dr. Cullinan was entitled to qualified immunity.

         I. BACKGROUND

         SOU employed Kramer on an annual appointment basis in a dual role, as Executive Director of Jefferson Public Radio (Public Radio) and as Executive Director of a related foundation, the JPR Foundation, Inc. (Foundation). Kramer reported directly to Dr. Cullinan.

         At some point, Dr. Cullinan became concerned about costly capital projects being undertaken by Foundation, such as the acquisition and renovation of a theater and a warehouse. Dr. Cullinan notified Foundation and the Oregon University System (University System) Chancellor (Chancellor Pernsteiner), of the potential financial risk to SOU as a result of Foundation's projects. Dr. Cullinan also raised the issue of conflict-of-interest situations between Public Radio and Foundation.

         In response to Dr. Cullinan's concerns, Chancellor Pernsteiner initiated an asset and liability review of Public Radio and Foundation. The resulting report (Audit Report) concluded that Foundation's new projects could impose "additional strain" on community fund-raising and "may not align with policy interests of SOU." The Audit Report also noted inherent problems, including actual, apparent, and potential conflicts of interest with Kramer serving as Executive Director of both Public Radio and Foundation. One consequence of that arrangement was "a lack of segregation of duties by the Executive Director of [Public Radio] when entering into contracts, " which was a conflict of interest because "one individual cannot adequately represent the interests of two separate parties to the same agreement or contract." The Audit Report determined that this situation was contrary to SOU's contract policy.[1]

         The Audit Report concluded that there was high internal control risk regarding the key areas examined. The report included recommendations to reduce those risks, including prohibiting one person from serving as Executive Director of both Public Radio and Foundation. In response, Dr. Cullinan agreed to address the concerns raised by the Audit Report and eliminate the conflict of interest posed by Kramer's dual roles. Dr. Cullinan convened a task force to address implementation of the recommendations in the Audit Report.

         Kramer resisted limiting his employment to one role, and insisted that it was crucial to Public Radio and Foundation that he continue serving as Executive Director of both entities. The task force completed its work, but no recommended resolution of the ...


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