Alozie v. Arizona Board of Regents

• Court: District Court, D. Arizona
• Decided: January 7, 2020
• Docket: 2:16-cv-03944
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Nicholas Alozie, No. CV-16-03944-PHX-ROS

10 Plaintiff, ORDER

11 v.

12 Arizona Board of Regents, et al.,

13 Defendants. 14 15 Plaintiff Nicholas Alozie (“Alozie”) is a professor at Defendant Arizona State 16 University, a public university which is governed by Defendant Arizona Board of Regents 17 (collectively, “ASU”).1 Alozie and three other candidates applied for the position of Dean 18 of the College of Letters and Sciences and were interviewed. At his interview, Alozie 19 handed the search committee, which was chaired by Defendant Marlene Tromp (“Tromp”), 20 a written statement. Alozie and one other candidate were not granted second interviews. 21 The two other candidates were granted second interviews, and one of those candidates was 22 ultimately selected as the Dean of the College of Letters and Sciences. Alozie argues this 23 outcome was based on his race and/or national origin, and in retaliation for his written 24 statement. At present, Alozie has two Title VII claims against ASU: (1) race and/or national 25 origin discrimination as to Alozie’s nonselection as Dean and the decision not to grant him 26 a second interview; and (2) retaliation as to the decision not to grant Alozie a second

27 1 Arizona State University is a non-jural governmental entity; the Arizona Board of Regents is the entity subject to suit pursuant to A.R.S. § 15-1625(B)(3). Krist v. Arizona, No. CV17- 28 2524 PHX DGC, 2018 WL 1570260, at *2 (D. Ariz. Mar. 30, 2018) 1 interview. Alozie also has a Section 1983 claim against Tromp in her personal capacity for 2 a violation of the First Amendment. ASU and Tromp now move for summary judgment on 3 each of these claims. For the reasons set forth below, ASU’s motion will be granted in part 4 and denied in part, and Tromp’s motion will be granted. 5 BACKGROUND 6 Unless otherwise noted, the following facts are either undisputed or taken in the 7 light most favorable to Alozie, the non-moving party.2 Alozie is a professor at ASU, and 8 has been the head of the Social Science Department at the Polytechnic campus since 2005. 9 (Doc. 22 at 5.3) Prior to 2014, the Social Science Department was part of the School of 10 Letters and Sciences (“SLS”), which was led by a Director, Dr. Frederick Corey, who also 11 served as the Dean of University College. (Doc. 22 at 5; Doc. 137 at 2.) In early 2014, 12 when Dr. Corey left his positions, Dr. Robert Page (“Page”), the ASU Provost, appointed 13 Dr. Duane Roen (“Roen”), an English professor and the Assistant Vice Provost for 14 University Academic Success Programs, to be the Interim Director of SLS and Interim 15 Dean of University College. (Doc. 137 at 3; Doc. 146-1 at 6, 9.) 16 In May 2014, Page decided to change the School of Letters and Sciences into the 17 College of Letters and Sciences (“CLS”), which would be governed by a Dean rather than 18 a Director. (Doc. 137 at 3–4; Doc. 22 at 6.) Roen’s title accordingly changed to Interim 19 Dean of CLS. (Doc. 137 at 5.) In July 2014, Roen addressed a group of faculty leaders in 20 CLS. (Doc. 137 at 4.) The parties dispute the contents of Roen’s statement. Alozie claims 21 Roen announced that the University had agreed to give the Dean position to Roen but 22 would announce a search to fill the position nevertheless; in other words, in Alozie’s view 23 2 Alozie disputes many facts, and raises objections to many others. The Court disregards 24 those disputed facts which are immaterial to resolving these motions. The Court also disregards the arguments, framed as disputes, which are presented in the controverting 25 statement of facts in violation of Local Rule of Civil Procedure 56.1(b). Breeser v. Menta Grp., Inc., NFP, 934 F. Supp. 2d 1150, 1154–55 (D. Ariz. 2013) (parties may not include 26 explanations, inferences, or arguments supporting their position in the response to the statement of facts, because “[o]pinion, suggested inferences, legal arguments and 27 conclusions are not the proper subject matter of a Local Rule 56.1 statement,” and it is “wholly improper, redundant, unpersuasive and irksome” to include them) (quoting 28 Phillips v. Quality Terminal Servs., LLC, 855 F. Supp. 2d 764, 771 (N.D. Ill. 2012)). 3 All page numbers refer to the ECF header. 1 Roen announced the outcome of the search was pre-determined. (Doc. 137 at 4–5; Doc. 2 141 at 9–10.) Roen claims he announced two things: first, the University was going to start 3 the process for finding a permanent dean; and second, Roen believed that in light of prior 4 appointments, there was a strong likelihood that he would be selected as the permanent 5 dean. (Doc. 137 at 4–5; Doc. 137-1 at 5–6, 80.) 6 On August 20, 2014, the faculty of CLS were emailed an announcement of the 7 internal search for a permanent Dean and a request for nominations and volunteers to serve 8 on the search committee. (Doc. 137 at 5; Doc. 137-1 at 102.) Dr. Barry Ritchie (“Ritchie”), 9 the Vice Provost for Academic Personnel at the time, was the Provost’s office liaison to 10 the search committee. (Doc. 137 at 5; Doc. 137-1 at 102.) Tromp, the Dean of the New 11 College of Interdisciplinary Arts and Sciences and Vice Provost of West Campus, was the 12 chair of the search committee, which ultimately consisted of fourteen other people. (Doc. 13 137 at 5–6.) One member of the search committee was Patience Akpan-Obong, who 14 worked under Alozie’s direct supervision as a faculty member in his unit and who Alozie 15 asked to serve on the committee. (Doc. 137 at 6.) Another member of the search committee 16 was Oscar Jiminez-Castellanos, who was a representative of the faculty Senate, as required 17 by ASU policy. (Doc. 137 at 6; Doc. 137-1 at 95; Doc. 141-1 at 102.) 18 At ASU, decisions regarding the appointment of deans are made by the Provost 19 (Page), subject to the approval of the President (Dr. Michael Crow (“Crow”)). (Doc. 137 20 at 1.) The search committee met on October 10, 2014, and Ritchie charged the committee 21 to identify a small number of candidates and to provide a recommendation to Page and 22 Crow. (Doc. 137 at 6; Doc. 141-1 at 104.) At the October 10, 2014 meeting, and via email 23 after the meeting, the search committee discussed the qualifications for the CLS Dean 24 position. (Doc. 137 at 7.) On October 22, 2014, the job announcement for the CLS Dean 25 position was sent out by email. (Doc. 137 at 7.) The job announcement listed the 26 responsibilities of the position, including “will provide academic and administrative 27 leadership” and “must be committed to working with the provost, the other deans, faculty 28 heads, and the faculty” of various programs on multiple campuses “to achieve university 1 academic goals for excellence in research and learning, and to further goals for inclusion 2 and impact.” (Doc. 137 at 7; Doc. 137-1 at 106.) 3 The job announcement listed five required qualifications and four desired 4 qualifications. (Doc. 137 at 7; Doc. 137-1 at 107.) Each candidate was required to be “a 5 tenured full professor at Arizona State University” who “exhibit[ed] leadership and 6 strategic vision” and had, among other qualifications, an “excellent record of scholarship,” 7 “demonstrated administrative skills,” and a “commitment to ASU’s values, goals, and 8 mission.” (Doc. 137 at 7; Doc. 137-1 at 107.) 9 The search committee received four applications for the position: Roen; Dr. Fabio 10 Milner (“Milner”), a Professor of Mathematics and the Director of Mathematics for STEM 11 Education; Dr. Joseph Carter (“Carter”), Associate Dean of ASU’s W.P. Carey School of 12 Business; and Alozie. (Doc. 137 at 8.) Roen and Carter are Caucasian; Milner is Latino; 13 and Alozie is African-American, with Nigerian national origin. (Doc. 22 at 14; Doc. 141 14 at 17, 24; Doc. 141-1 at 24.) The search committee determined all four applicants met the 15 required qualifications and invited them all for initial interviews. (Doc. 137 at 9.) 16 On December 1, 2014, the search committee interviewed the four candidates. (Doc. 17 137 at 9.) The search committee prepared a set of approximately ten general interview 18 questions, which were asked of all candidates, and two specific questions for each 19 individual candidate. (Doc. 137 at 9; Doc. 137-2 at 9; Doc. 141-1 at 24.) Alozie brought a 20 written statement to the interview that he planned on reading to the search committee; he 21 said he wanted the written statement to be part of the process and handed out copies of the 22 statement to members of the committee. (Doc. 137 at 9.) Tromp informed Alozie that, in 23 the interest of treating all the candidates the same, Alozie’s interview would be centered 24 around the prepared questions. (Doc. 137 at 9; Doc. 137-1 at 10, 30; Doc. 141 at 19.) Thus, 25 Alozie did not read his statement aloud. (Doc. 137-1 at 10.) The statement is five pages 26 long and is entitled “Opening Statement to the Dean’s Search Committee.” (Doc. 137-1 at 27 199–203.) The first few pages of the statement read as follows: Good Afternoon: 28 Thank you for the invitation to meet with you. This is a very special 1 day in the history of ASU, and I will tell you why. In the 24 years I have been at ASU, I have worn two hats. The first 2 hat is that of a faculty member working, just like everyone else, to build a 3 career and to contribute to the well-being of students and the institution. The second hat is that of a community diversity leader helping to build an 4 environment conducive for women and minority scholars to succeed at ASU. 5 I would say I have been very successful at both. The latter hat led me to the position of chairperson of the ASU Black 6 Caucus, where only a few years back and among other issues, I worked with 7 Milt Glick, our former provost, and other top ASU officials to close the “Revolving Door” of minority scholars leaving ASU as quickly as they 8 arrived because they didn’t think the environment was favorable 9 enough to warrant their staying at ASU. The complaint among young minority faculty was that ASU was simply a stopover and for a 10 rewarding career with advancement they had to move on to another 11 university. They never saw ASU as a place to build a career. The fact that as a homegrown product of ASU having advanced 12 through the ranks at ASU to head a faculty unit for nine years continuously, 13 I am sitting before you here today to compete for the position of Dean at ASU is historic. That is what makes this a very special day. Traditionally, ASU is 14 one of those places where we scramble to get minority scholars from outside to apply for these kinds of positions. If Provost Glick were here today, he 15 would be proud of this milestone for ASU, although there are not many 16 colleges at the university where the same success can be observed. Having said that, I must confess that the decision to apply for this 17 position was a difficult one for me. The circumstances of my application may 18 offend some people and may even lead to a blowback. This is why my application came in at the very last minute. I had to carefully consider the 19 decision to indicate my interest in this position. 20 Indeed, the word in the College is that there is really no vacancy here, that this Dean’s position has already been promised and that the 21 university is simply going through the motions to dot its i’s and cross its 22 t’s with this hiring process. Thus, I am expected, just like everyone else in the college, to back off and let the impending coronation take place. 23 (Doc. 137-1 at 199–201) (emphases added in bold). The remainder of the statement 24 discusses Alozie’s reasons for applying to the position (“I am well qualified for this 25 position as per the stated requirements” and “I have devoted the better part of my adult life 26 working to create a level playing field for women and minorities”); the nature of the Dean’s 27 position; Alozie’s history at ASU; and a closing statement. (Doc. 137-1 at 201–203.) 28 At the time of the December 1, 2014 interviews, Alozie thought the search process 1 was a sham process. (Doc. 137 at 10.) Alozie based this thinking on his understanding of 2 Roen’s July 2014 statement to the CLS leadership group regarding Roen’s eventual 3 appointment as the permanent Dean. (Doc. 141 at 21; Doc. 137 at 4–5.) 4 After the interviews, the search committee discussed each of the candidates and 5 voted in favor of advancing Roen and Milner to the second round of interviews on campus. 6 (Doc. 137 at 11.) The search committee also discussed Alozie’s accusation in his written 7 statement that “the word in the College is that there is really no vacancy here, that this 8 Dean’s position has already been promised and that the university is simply going through 9 the motions to dot its i’s and cross its t’s with this hiring process.” (Doc. 137 at 11; Doc. 10 141 at 25.) In the course of the discussion, the evidence indicates that at least three members 11 of the search committee felt that Alozie was attacking the integrity of the search committee. 12 (Doc. 137-1 at 206, 218; Doc. 137-2 at 6.) A small minority of the committee, including 13 Patience Akpan-Obong and Oscar Jimenez-Castellanos, supported inviting Alozie to a 14 second interview, while the remaining members of the search committee did not, and the 15 parties dispute whether the committee had reached a final decision on inviting Alozie to a 16 second interview before the meeting adjourned. (Doc. 137 at 11–12; Doc. 141 at 23–25.) 17 After the discussion, Tromp said she would speak with the Provost’s office. (Doc. 137 at 18 12.) 19 After the meeting adjourned, on December 1, 2014, at 6:17 p.m., Tromp sent Ritchie 20 an email that said, “I have a quick (but thorny) question about the Dean search for you” 21 and left a call-back number. (Doc. 137 at 12; Doc. 137-2 at 27.) Tromp wanted to talk to 22 Ritchie about the concerns that had been raised and to ask him what the appropriate next 23 steps would be, and to relate what happened at the committee meeting. (Doc. 137 at 13.) 24 Tromp and Ritchie spoke by phone later that evening, and Tromp told Ritchie that Alozie 25 had submitted an opening statement at his interview and made an allegation that the 26 committee was biased, and Tromp was upset because she felt her integrity had been 27 impugned. (Doc. 137 at 13.) It appears the “bias” at issue was Alozie’s concern that Roen 28 had already been selected for the position. (Doc. 137-1 at 72; Doc. 141 at 28.) That is, there 1 is no indication that Tromp’s concerns stemmed from Alozie’s allegations regarding racial 2 discrimination. Ritchie told Tromp that she should focus on her job as chair of the search 3 committee, that the goal of the interview was to gather information relating to the decision 4 to be made, and the committee had done that. (Doc. 137 at 13.) He also told her that the 5 slate of candidates and the process seemed fine, and that there were other processes for the 6 kind of concerns that Alozie raised. (Doc. 137 at 13.) 7 The following morning, on December 2, 2014, Tromp sent Alozie an email thanking 8 him for the time and energy he invested in the search process but informing him that the 9 CLS Dean search committee “felt the college needed different leadership for its next phase 10 of development.” (Doc. 137 at 13; Doc. 137-2 at 29.) Alozie understood he was no longer 11 in the running for the CLS Dean position, and was shocked, surprised, and felt “some 12 anger.” (Doc. 137 at 13; Doc. 137-1 at 12.) Tromp sent a similar email to Carter. (Doc. 137 13 at 13–14; Doc. 137-2 at 31.) But Tromp sent emails to Roen and Milner inviting them to 14 move forward in the CLS Dean search process with campus interviews. (Doc. 137 at 14; 15 Doc. 137-2 at 33, 35.) 16 Members of the search committee served as hosts and moderators of the campus 17 interviews, which took place on December 3 and 5, 2014, and involved directors and chairs, 18 faculty and students. (Doc. 137 at 14.) On December 12, 2014, the search committee met 19 and discussed the weaknesses and strengths of Roen and Milner, which Tromp summarized 20 in a memo. (Doc. 137 at 14.) On December 13, 2014, Tromp sent Page an email saying she 21 wanted to speak to him to share some things that did not belong in her report; the two spoke 22 at commencement and Tromp expressed her belief that ASU would be best served by 23 relaunching the search and conducting an external search. (Doc. 137 at 14; Doc. 137-1 at 24 29.) After the conversation with Page at commencement, Tromp had no further discussions 25 regarding the Dean search with either Page or Crow. (Doc. 137 at 15.) 26 On December 20, 2014, Tromp emailed Page her Dean Search Memo summarizing 27 the strengths and weaknesses of Roen and Milner, noting “Dr. Milner seemed more likely 28 to strive to achieve the college’s goals by working through attention to faculty and faculty 1 research and Dr. Roen through attention to students,” and concluding that both were 2 capable of doing the job. (Doc. 137 at 15; Doc. 137-2 at 39–42.) On January 14, 2015, Page 3 offered Roen the position of Dean of CLS. (Doc. 137 at 15.) 4 In March 2015, Alozie met with Erin Ellison, a senior Equal Opportunity consultant 5 with ASU’s Office of Equity and Inclusion. (Doc. 137-1 at 14; Doc. 141-2 at 5.) Ms. Ellison 6 investigated, interviewing several members of the search committee, and issued a report to 7 Searle on October 8, 2015 concluding that Alozie’s statement “was not the primary reason 8 why [Alozie] did not move onto the final interview.” (Doc. 141-1 at 27.) Alozie also filed 9 a charge of discrimination with the Equal Employment Opportunity Commission 10 (“EEOC”) in August 2015. (Doc. 137 at 15.) The EEOC conducted an investigation and 11 issued a determination on June 10, 2016 stating “Based upon its investigation, the EEOC 12 is unable to conclude that the information obtained establishes violations of the statutes. 13 This does not certify that [ASU] is in compliance with the statutes.” (Doc. 137 at 15; Doc. 14 137-2 at 44.) Alozie timely filed his complaint in Arizona Superior Court, which was 15 removed to this Court under 28 U.S.C. § 1441(a). 16 After the Court dismissed certain claims and the parties stipulated to dismiss certain 17 defendants and limit other claims, Alozie is still pursuing three claims: (1) ASU 18 discriminated against Alozie due to his race and/or national origin by not granting Alozie 19 a second interview and not selecting him for the position of Dean of CLS , in violation of 20 Title VII; (2) ASU retaliated against Alozie for submitting his opening statement to the 21 search committee by not granting Alozie a second interview, in violation of Title VII; and 22 (3) Tromp retaliated against Alozie for submitting his opening statement to the search 23 committee by not selecting Alozie for the position of Dean of CLS, in violation of the First 24 Amendment. (Doc. 22; Doc. 117.) 25 ASU seeks summary judgment on Alozie’s Title VII claims, arguing Alozie lacks 26 evidence that the refusal to offer a second interview or hire him as dean was based on his 27 race or national origin, or as retaliation for his written statement. (Doc. 135.) Tromp seeks 28 summary judgment on Alozie’s First Amendment claim, arguing she is entitled to qualified 1 immunity. (Doc. 136.) 2 ANALYSIS 3 I. Standard for Summary Judgment 4 The moving party is entitled to summary judgment if the evidence, viewed in the 5 light most favorable to the non-moving party, shows “there is no genuine dispute as to any 6 material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. 7 Civ. P. 56(a); see also Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004); Margolis 8 v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). At summary judgment, the court cannot weigh 9 the evidence nor make credibility determinations. Dominguez-Curry v. Nevada Transp. 10 Dep’t, 424 F.3d 1027, 1035 (9th Cir. 2005). The moving party initially bears the burden 11 of proving the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 12 U.S. 317, 321–25 (1986). To do so, “[t]he moving party must either produce evidence 13 negating an essential element of the nonmoving party’s claim or defense or show that the 14 nonmoving party does not have enough evidence of an essential element to carry its 15 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, 16 Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 17 Regarding the evidence, the district court “need consider only the cited materials.” 18 Fed. R. Civ. P 56(c)(3). Thus, “where the evidence is not set forth in the opposing papers 19 with adequate references so that it could conveniently be found” “[t]he district court need 20 not examine the entire file for evidence establishing a genuine issue of fact.” Wyatt Tech. 21 Corp. v. Smithson, 345 F. App’x 236, 239 (9th Cir. 2009) (quoting Carmen v. San Fran. 22 Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001)). That said, the district court may 23 consider materials in the record not cited by the parties. Fed. R. Civ. P 56(c)(3). 24 II. ASU’s Motion for Summary Judgment 25 ASU moves for summary judgment on both of Alozie’s Title VII claims: (1) race or 26 national origin discrimination; and (2) retaliation. Each is discussed separately. 27 A. Race or National Origin Discrimination 28 Under Title VII an employer may not “discriminate against an individual with 1 respect to his . . . terms, conditions, or privileges of employment” because of his race or 2 national origin. 42 U.S.C. § 2000e-2(a). Alozie originally alleged he had been 3 discriminated against because of race and/or national origin. However, the parties’ 4 summary judgment filings do not address “national origin” separately. In fact, Alozie’s 5 opposition to the motion for summary judgment does not even use the phrase “national 6 origin.” Therefore, the Court will analyze Alozie’s Title VII discrimination claim based 7 solely on race. 8 To survive summary judgment on a race discrimination claim, Alozie must “create 9 a triable issue of fact regarding discriminatory intent.” Habib v. Matson Navigation Co., 10 Inc., 694 F. App’x 499, 500–01 (9th Cir. 2017) (citing Pac. Shores Props., LLC v. City of 11 Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013)). To do so, Alozie may rely on the 12 burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 13 (1973).4 14 Under the McDonnell Douglas framework, Alozie must first establish a prima facie 15 case of racial discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 16 (1973). ASU does not dispute that Alozie met this burden, because he belongs to a 17 protected class; he applied for a position for which he met the minimum qualifications; he 18 was rejected for the position when he was eliminated from consideration after the first 19 round of interviews; and ASU filled the position with an employee not of Alozie’s class. 20 See Dominguez-Curry, 424 F.3d at 1037 (fourth element of McDonnell Douglas 21 framework may be met in two ways, when “the employer filled the position with an 22 employee not of plaintiff’s class, or continued to consider other applicants whose 23 qualifications were comparable to plaintiff’s after rejecting plaintiff”); Doc. 135 at 7. 24 4 Alozie claims he does not need to rely on the McDonnell Douglas framework to survive 25 summary judgment. (Doc. 143 at 10). But it is simplest to employ the McDonnell Douglas framework. Ultimately, the inquiries under the McDonnell Douglas framework and the 26 more straightforward approach are often the same. And here, Alozie has no evidence establishing a dispute of fact regarding intentional discrimination regardless of the 27 approach taken. Cf. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir. 2004) (noting district court’s reliance on McDonnell Douglas was “not particularly significant” 28 because the important inquiry was whether plaintiff had presented sufficient evidence of discriminatory intent). 1 Having conceded Alozie can establish a prima facie case, the burden shifted to ASU 2 to articulate a legitimate, nondiscriminatory reason for not granting Alozie a second 3 interview and not selecting Alozie for the position of Dean of CLS. McDonnell Douglas, 4 411 U.S. at 802. ASU explains Alozie “was eliminated because other candidates were 5 better qualified.” (Doc. 135 at 7.) Specifically, ASU focuses on the candidates’ 6 administrative experience, noting that while Alozie had served as a Faculty Head, Alozie’s 7 unit was small, while Roen “served as Assistant Vice Provost for University Academic 8 Success Programs, Director of the Center for Learning and Teaching Excellence, Director 9 of English Composition, and Faculty Head of numerous faculty units.” (Doc. 135 at 7–8; 10 Doc. 146-1.) Alozie “objected to and disputed” this in his Response to the Statement of 11 Facts, but the applicant whose qualifications Alozie challenged was Milner, not Roen. 12 (Doc. 143 at 11; Doc. 141 at 18, 21–23.) In fact, Alozie admits he “does not contend that 13 Roen was an unqualified candidate.”5 (Doc. 141 at 21.) Alozie does not dispute the 14 qualifications held by Roen, Milner, and himself; rather, he challenges how those 15 qualifications should have been weighed. (Doc. 143 at 7; Doc. 141-1 at 3.) 16 There is no issue of material fact as to whether ASU has articulated a legitimate, 17 nondiscriminatory reason for not granting Alozie a second interview and not selecting 18 Alozie for the position of Dean of CLS. The burden therefore returned to Alozie to raise a 19 genuine factual question whether this reason is pretextual. Alozie may prove pretext in two 20 ways: “(1) indirectly, by showing that [ASU’s] proffered explanation is ‘unworthy of 21 credence’ because it is internally inconsistent or otherwise not believable, or (2) directly, 22 by showing that unlawful discrimination more likely motivated [ASU].” Chuang v. Univ. 23 of California Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) (citing Godwin 24 v. Hunt Wesson, Inc., 150 F.3d 1217, 1220–22 (9th Cir. 1998)). 25 In his briefing, Alozie argues he has presented both direct and indirect evidence of

26 5 Alozie contradicts this statement in his Response to ASU’s Motion for Summary Judgment, where he asserts “Duane Roen’s own qualifications were called into question 27 early in the process.” (Doc. 143 at 12.) But the only factual support provided for this assertion is an email reflecting uncertainty on Searle’s part about Roen’s courage to make 28 tough personnel decisions. (Doc. 141 at 5; Doc. 137-1 at 52, 98.) There is no dispute as to whether Roen met the required qualifications. 1 pretext. (Doc. 143 at 10).6 But that is not accurate. “Direct evidence is evidence which, if 2 believed, proves the fact [of discriminatory animus] without inference or presumption.” 3 Godwin, 150 F.3d at 1221 (quoting Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th 4 Cir. 1994)) (alteration in original). “Direct evidence typically consists of clearly sexist, 5 racist, or similarly discriminatory statements or actions by the employer.” Coghlan v. Am. 6 Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005). Alozie has not cited any evidence 7 of “clearly . . . racist” statements or actions by ASU. Id. Therefore, the proper inquiry is 8 whether Alozie has pointed to sufficient indirect evidence. To survive summary judgment 9 by relying on indirect evidence, Alozie must point to “specific and substantial” indirect 10 evidence. Id. Alozie cites ten alleged pieces of indirect evidence. (Doc. 143 at 9). But that 11 evidence, even viewed cumulatively, is not sufficient. 12 Alozie’s first indirect evidence is that Roen was preselected for the Dean position 13 when he was appointed as interim Dean. (Doc. 143 at 9, 13.) But Roen was only one of 14 two candidates who were recommended to the Provost and President as equally capable of 15 doing the job of CLS Dean. (Doc. 137 at 15; Doc. 137-2 at 42.) And “only preselection 16 based on discriminatory motives violates Title VII.” Blue v. Widnall, 162 F.3d 541, 547 17 (9th Cir. 1998) (emphasis added). Alozie presents no factual evidence either that Roen’s 18 initial appointment as the interim Dean, or that the selection of Roen as permanent Dean 19 (as between the two final candidates of Roen and Milner, who is Latino) occurred because 20 of Roen’s race. 21 Alozie next cites his “early exclusion . . . based solely on an ‘impression.’” (Doc. 22 143 at 9.) He appears to be referring to the fact that his name, along with the names of three 23 other full professors in CLS, most of whom are white, was included in a list Searle sent to 24 Page of individuals who might not be a good fit for the Dean position. (Doc. 137 at 8; Doc. 25 137-1 at 110; Doc. 141 at 16.) Alozie presents no factual evidence that his name’s presence 26 on a list that included members of multiple races, followed by the acceptance of his

27 6 Alozie uses the term “circumstantial evidence,” which is used interchangeably with “indirect evidence.” Compare Chuang, 225 F.3d at 1127 (using term “indirect evidence”) 28 with Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1094 (9th Cir. 2005) (using term “circumstantial evidence”). 1 application and the grant of an initial interview, constituted exclusion based on Alozie’s 2 race. 3 Third, Alozie cites a “lack of contemporaneous documentation by the committee” 4 that Alozie’s qualifications were an issue. (Doc. 143 at 9.) But at least one member of the 5 search committee kept detailed notes regarding the discussion of the candidates’ 6 qualifications at the November 21, 2014 search committee meeting. (Doc. 141-1 at 105– 7 106.) In those contemporaneous notes, the candidates were directly compared on 8 scholarship7 (Roen had “many chapters but lack of books,” Milner had “[s]trong 9 scholarship,” and Alozie had a “[w]eak scholarly record – inconsistent”) and 10 administrative/leadership experience8 (Roen had “[s]trong administrative & multiple 11 campuses” and was a “[w]orkhorse on behalf of college,” Milner had a “[l]ack of leadership 12 experience,” and Alozie was “[w]eaker in administrative,” “[n]ot easiest person to work 13 for,” and the “[p]rogram he runs has not grown”), as well as the other required and desired 14 qualifications. (Doc. 141-1 at 105–106.) Alozie is incorrect that there was no 15 contemporaneous documentation of the committee’s concerns with his qualifications. 16 Fourth, fifth, and tenth, Alozie refers to awareness that Alozie was a person of color, 17 the fact that minorities are underrepresented in academic dean positions, and ASU’s stated 18 goals of recruiting diverse candidates. (Doc. 143 at 9–10.) This does not constitute 19 evidence of racial discrimination at all, particularly when diversity was a specific goal of 20 the dean search and when Tromp was “very excited about [Alozie’s] candidacy because 21 [she] really wanted to see more diversity in [ASU’s] leadership.” (Doc. 137 at 7; Doc. 137- 22 1 at 27, 106–107.) 23 Sixth and seventh, Alozie cites an “alleged ‘visceral reaction’ by a search committee 24 member after Plaintiff spoke” and ASU’s “pervasive ‘angry black man’ theme.” (Doc. 143 25 at 9.) It is true that during her deposition Tromp described Alozie as angry when he was 26 denied the opportunity to read his opening statement aloud to the committee. (Doc. 137 at 27 9; Doc. 137-1 at 30.) Alozie claims the better view of his demeanor was that of Dr. Ian

28 7 Required qualification: “excellent record of scholarship.” (Doc. 137-1 at 107.) 8 Required qualification: “demonstrated administrative skills.” (Doc. 137-1 at 107.) 1 Moulton, who described Alozie’s tone as “forceful” and “self-assured”—but also noted 2 that “some of the things that [Alozie] said seemed to [Moulton] to be beyond the tone of 3 what is usually said in a job interview,” such that one of the committee members responded 4 to Alozie’s tone with a “visceral reaction” that “Well, that’s one person we won’t be 5 hiring.” (Doc. 141 at 19; Doc. 141-1 at 91–93.) It is unclear how Tromp’s individual view 6 of Alozie as “angry” instead of “forceful,” as another member of the search committee 7 perceived Alozie, is evidence of pretext. Taken in context, this does not constitute factual 8 indirect evidence of racial discrimination. 9 Eighth, Alozie cites the “refusal (approved by the administration) to grant [Alozie] 10 a second interview after mentioning preselection and his work with minorities.” (Doc. 143 11 at 9.) This allegation is the core of Alozie’s claim, and is not independent indirect evidence 12 of racial discrimination. 13 Ninth, Alozie cites Tromp’s oral statement to Page that the search process should 14 be re-started as a national search, and her written report recommending both Roen and 15 Milner as qualified candidates. (Doc. 143 at 9.) Tromp’s conclusion that a better candidate 16 might exist elsewhere in the country, even though Roen (Caucasian) and Milner (Latino) 17 were both qualified candidates, is not factual evidence of racial discrimination against 18 Alozie. 19 Alozie believes ASU’s subjective weighing of Roen, Milner, and Alozie’s 20 respective qualifications was a pretext for racial discrimination. (Doc. 143 at 9, 12–14; 21 Doc. 141 at 18, 21–23.) But the Ninth Circuit has “explicitly rejected the idea that an 22 employer’s use of subjective employment criteria . . . ‘is per se prohibited by Title VII,’” 23 particularly in cases where, as here, the job being sought is a “higher level job” for which 24 the criteria “are not easily articulable.” Casillas v. U.S. Navy, 735 F.2d 338, 345 (9th Cir. 25 1984) (quoting Ward v. Westland Plastics, Inc., 651 F.2d 1266, 1270 (9th Cir. 1980)). The 26 mere fact that ASU considered subjective criteria when filling the high-level position of 27 Dean of CLS is insufficient to show pretext. Contemporaneous records of the candidates’ 28 administrative qualifications reflect that Alozie was “[w]eaker in administrative” than 1 Roen.9 (Doc. 141-1 at 105.) Alozie may have preferred ASU to evaluate administrative 2 experience differently and as less important, but that does not raise a genuine issue of 3 material fact that ASU’s subjective qualification-weighing process was a pretext for 4 discrimination. 5 Considering all of the indirect evidence cumulatively, Alozie has failed to provide 6 “specific and substantial” indirect evidence of racial discrimination. Coghlan, 413 F.3d at 7 1095. Accordingly, summary judgment will be granted in favor of ASU on Alozie’s race 8 or national origin discrimination claim. 9 B. Retaliation 10 To establish a prima facie case of retaliation under Title VII, Alozie must establish: 11 (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) 12 there is a causal link between the protected activity and the adverse employment action. 13 Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 693 (9th Cir. 2017). If Alozie establishes 14 a prima facie case, “the burden then shifts to [ASU] to advance a legitimate, nonretaliatory 15 reason for any adverse employment action.” Id. If ASU meets that burden, Alozie then has 16 the “ultimate burden” of showing that the proffered reason is pretextual. Id. 17 The first step is determining whether Alozie engaged in protected activity when he 18 submitted his opening statement to the search committee. ASU and Alozie focus on 19 different portions of the opening statement to support their respective arguments. ASU 20 argues that Alozie’s assertion that the “Dean’s position has already been promised and that 21 the university is simply going through the motions” does not qualify as protected activity. 22 (Doc. 135 at 11.) Alozie asserts that his statements that he had “devoted the better part of 23 my adult life working to create a level playing field for women and minorities” and that 24 minority scholars “didn’t think [ASU’s] environment was favorable enough to warrant [the 25 minority scholars] staying at ASU . . . that ASU was simply a stopover and for a rewarding 26 career with advancement [the minority scholars] had to move on to another university”

27 9 In one of the interviews conducted in the course of the OEI investigation, one of the committee members noted that the “major reason” Alozie was not selected for a second 28 interview was that he “did not have quite as much administrative experience as the other two candidates.” (Doc. 141-2 at 2–3.) 1 constituted a “complain[t] about the disparate treatment of minorities in hiring decisions at 2 ASU.” (Doc. 143 at 4.) 3 An individual engages in protected activity under Title VII when the individual has 4 a “reasonable belief” that the employment practice being opposed is prohibited under Title 5 VII. Trent v. Valley Elec. Ass’n Inc., 41 F.3d 524, 526 (9th Cir. 1994) (collecting cases); 6 see also Maner v. Dignity Health, 350 F. Supp. 3d 899, 906 (D. Ariz. 2018) (“An employee 7 engages in protected activity for purposes of Title VII when he opposes conduct that he 8 reasonably believes to be an unlawful employment practice.”). A jury might reasonably 9 view as protected activity Alozie’s assertion that minority scholars could not achieve a 10 “rewarding career with advancement” at ASU because the “environment was [not] 11 favorable enough to warrant their staying at ASU.” (Doc. 137-1 at 199–201.) 12 Alozie must then establish that he suffered adverse employment action when he did 13 not receive a second interview. In the Ninth Circuit, “an adverse employment action is 14 adverse treatment that is reasonably likely to deter employees from engaging in protected 15 activity.” Ray v. Henderson, 217 F.3d 1234, 1237 (9th Cir. 2000). Because Alozie 16 stipulated that his retaliation claim was “limited to Defendant Arizona Board of Regents 17 and Arizona State University’s decision not to grant [Alozie] a second interview,” ASU’s 18 “non-selection of [Alozie] for the position of Dean of the College of Letters and Sciences,” 19 which constituted a portion of Alozie’s discrimination claim, is not considered as part of 20 his retaliation claim. (Doc. 116 at 2.) In the Ninth Circuit, as well as the First, Seventh, 21 Tenth, Eleventh, and D.C. Circuits, all of which “define adverse employment action 22 broadly,” courts disagree on whether failure to interview, without an accompanying failure 23 to promote claim, constitutes adverse employment action for the purposes of Title VII 24 retaliation. Ray, 217 F.3d at 1240; compare Foraker v. Apollo Grp., Inc., 427 F. Supp. 2d 25 936, 942 (D. Ariz. 2006) (“failure to interview . . . do[es] not constitute adverse 26 employment action[].”) with Segal v. Harris Teeter Supermarkets, Inc., No. CV 15-1496 27 (BAH), 2016 WL 7223273, at *6 n.4 (D.D.C. Dec. 13, 2016) (“[T]he D.C. Circuit has 28 acknowledged that failure to interview may in some cases be equivalent to a failure to 1 promote.”), Scarborough v. Nestle Waters N. Am. Inc., No. CIV. 07-193-P-S, 2008 WL 2 4787573, at *9 (D. Me. Oct. 30, 2008), report and recommendation adopted, No. CIV. 07- 3 193-P-S, 2008 WL 5236029 (D. Me. Dec. 15, 2008) (“I will focus first on the question 4 whether a failure to interview an employee for another position may constitute adverse 5 employment action for purposes of a Title VII claim. Available case law suggests that it 6 is.”); see also Gray v. City of Montgomery, No. 2:16-CV-48-WKW, 2018 WL 1748115, at 7 *3 & n.5 (M.D. Ala. Apr. 11, 2018) (declining to consider “whether a failure to interview 8 is an adverse employment action” because the issue was raised for the first time in the reply 9 brief, with no supporting legal authority). 10 The Ninth Circuit crafted the definition of adverse employment action by declining 11 to focus on “the ultimate effects of each employment action,” concentrating instead on 12 whether the “deterrent effects . . . effectuate[d] the letter and the purpose of Title VII.” Ray, 13 217 F.3d at 1243. In accordance with that guidance, the Court finds that declining to grant 14 an individual a second interview, when the individual engaged in protected activity during 15 the first interview, is reasonably likely to deter employees from engaging in protected 16 activity. 17 Having established that he engaged in protected activity when he submitted an 18 opening statement asserting that minority scholars could not achieve a rewarding career at 19 ASU, and that he suffered an adverse employment action when he did not receive a second 20 interview, Alozie must complete his prima facie case by establishing a causal link between 21 the opening statement and the lack of a second interview. Such a causal link “can be 22 inferred from circumstantial evidence such as [ASU’s] knowledge of the protected 23 activities and the proximity in time between the protected activity and the adverse action.” 24 Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011). Alozie interviewed (and 25 submitted his opening statement) on December 1, 2014, and at 5:57 am on December 2, 26 2014, less than 24 hours later, Alozie was informed that he was no longer in the running 27 for the position of CLS Dean. (Doc. 137 at 9, 13; Doc. 137-2 at 29.) This temporal 28 proximity between the protected activity and the alleged adverse employment action, 1 together with evidence that members of the search committee reacted strongly to the 2 content of the opening statement, can provide sufficient circumstantial evidence of 3 retaliation. Bell v. Clackamas Cty., 341 F.3d 858, 865 (9th Cir. 2003) (collecting cases). 4 The burden therefore shifted to ASU to “advance a legitimate, nonretaliatory 5 reason” for deciding not to grant Alozie a second interview. Reynaga, 847 F.3d at 693. 6 ASU asserts that the other candidates were “better qualified for the Dean position in terms 7 of experience, understanding of the job, and possession of the skills necessary to work 8 effectively across the university” and notes that Alozie “received scant support for a second 9 interview.” (Doc. 135 at 12–13.) For the reasons discussed in II.A, above, this is a 10 legitimate, nonretaliatory basis for ASU’s decision, and the burden returned to Alozie to 11 show this reason is pretextual. 12 Because he has no “direct evidence,” Alozie must provide “specific and substantial” 13 circumstantial evidence of pretext to survive summary judgment. Bergene v. Salt River 14 Project Agr. Imp. & Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001). Alozie alleges that 15 “[l]iterally everyone connected with the committee focused on his written statement” and 16 that “all signs point to the fact that” Alozie was being considered for a second interview 17 “right up until” Tromp’s phone call with Ritchie. (Doc. 143 at 7.) The parties do not dispute 18 that the committee discussed Alozie’s statement, but do dispute whether the discussion 19 focused on the content or the tone of the statement. Compare Doc. 137-1 at 25 (Tromp 20 testified at 55:19–20 that “The tone of the statement was a contributing factor, not the 21 content.”) with Doc. 141-2 at 6 (Ian Moulton told Ms. Ellison “Alozie basically came to 22 the interview with a statement that said he did not trust the committee members to make 23 this judgment. It was a procedural thing at that point.”) and Doc. 141-2 at 9 (Pamela 24 Stewart told Ms. Ellison “she voted no because of what Nick had in his written component, 25 which made her feel like the committee were being attacked.”) 26 Taking the facts in the light most favorable to Alozie, the combination of the 27 temporal proximity between the submission of Alozie’s written statement and the decision 28 not to grant him a second interview, as well as statements by members of the search 1 committee that they considered the content of the written statement when considering 2 whether to grant Alozie a second interview, Alozie has provided specific and substantial 3 circumstantial evidence sufficient to create a genuine dispute of material fact.10 4 Accordingly, summary judgment on Alozie’s retaliation claim will be denied. 5 III. Tromp’s Motion for Summary Judgment 6 Tromp moves for summary judgment on Alozie’s First Amendment claim on the 7 ground that she is entitled to qualified immunity. For the following reasons, her motion 8 will be granted. 9 Tromp, as a public official, is shielded by the doctrine of qualified immunity “from 10 liability for civil damages insofar as [her] conduct does not violate clearly established 11 statutory or constitutional rights of which a reasonable person would have known.” 12 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 13 800, 818 (1982)). A district court may exercise discretion in determining whether to 14 address the “constitutional right” prong or the “clearly established” prong first. Id. at 236. 15 The Court will focus on the “clearly established” prong. For Tromp to have violated 16 Alozie’s clearly established constitutional rights, “existing precedent” as of December 1, 17 2014 “must have placed the . . . constitutional question beyond debate.” Jessop v. City of 18 Fresno, 936 F.3d 937, 940 (9th Cir. 2019) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 19 (2011)). 20 Any public employee pursuing a First Amendment retaliation claim in the Ninth 21 Circuit must proceed through a “sequential five-step series of questions: (1) whether the 22 plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private 23 citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial 24 or motivating factor in the adverse employment action; (4) whether the state had an 25 adequate justification for treating the employee differently from other members of the 26 general public; and (5) whether the state would have taken the adverse employment action

27 10 There is confusion in the record regarding which portion of Alozie’s statement was cause for concern. The committee was free, of course, to take action based on the unprotected 28 portion of Alozie’s statement. However, taking the facts in the light most favorable to Alozie, it is possible the committee responded to the protected portion of the statement. 1 even absent the protected speech.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).11 2 The plaintiff bears the burden of the first three steps; the state bears the burden of the last 3 two. Id. at 1070–72. 4 The Court has previously determined that Alozie’s written statement regarded a 5 matter of public concern. (Doc. 17 at 15–17.) The question then becomes whether Alozie 6 “spoke as a private citizen or public employee.” Eng, 552 F.3d at 1071. Normally, “when 7 public employees make statements pursuant to their official duties, the employees are not 8 speaking as citizens for First Amendment purposes, and the Constitution does not insulate 9 their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 10 (2006); see also Lane v. Franks, 573 U.S. 228, 238, 240 (2014) (“The critical question 11 under Garcetti is whether the speech at issue is itself ordinarily within the scope of an 12 employee’s duties, not whether it merely concerns those duties.”). But because Alozie is a 13 professor at a public university in the Ninth Circuit, some of his speech made pursuant to 14 his official duties will qualify as “academic speech” that receives additional protection. 15 “[T]eaching and academic writing that [is] performed ‘pursuant to the official duties’ of a 16 teacher and professor” is “academic employee speech not covered by Garcetti [but] 17 protected under the First Amendment, using the analysis established in Pickering.” Demers 18 v. Austin, 746 F.3d 402, 412 (9th Cir. 2014) (citing Pickering v. Board of Ed. of Twp. High 19 Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563 (1968)). 20 Thus, there are three possibilities: (1) if Alozie’s statement was not pursuant to his 21 official duties at all, Alozie was speaking as a private citizen and the Pickering test applies; 22 (2) if Alozie’s statement constituted “teaching and academic writing” performed pursuant 23 to his official duties, the Pickering test applies; or (3) if Alozie’s statement was pursuant 24 11 Eng’s modern test reflects the “dramatic[], if sometimes inconsistent[]” evolution of First 25 Amendment retaliation law since Pickering v. Board of Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563 (1968), first set forth the original test. 552 F.3d at 1070. 26 The original Pickering test had two parts: (1) “the employee must show that his or her speech addressed ‘matters of public concern’”; and (2) “the employee’s interest ‘in 27 commenting upon matters of public concern’ must outweigh ‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its 28 employees.’” Demers v. Austin, 746 F.3d 402, 412 (9th Cir. 2014) (quoting Pickering, 391 U.S. at 568). 1 to his official duties but did not constitute “teaching and academic writing,” the Garcetti 2 test applies and Alozie’s speech was not protected. 3 To determine if Alozie was speaking as a private citizen or pursuant to his official 4 duties, the Court must first make a factual determination as to the scope and content of 5 Alozie’s job duties, which is a “practical” inquiry, before determining the constitutional 6 significance as a matter of law. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 966 7 (9th Cir. 2011) (citing Garcetti, 547 U.S. at 421, 424). If Alozie’s statement “owes its 8 existence to [his] professional responsibilities,” it was pursuant to his official duties. 9 Garcetti, 547 U.S. at 421–22. Speech pursuant to official duties is a broader category than 10 speech that is part of official duties, and Garcetti requires that district courts consider the 11 former. Lyons v. Vaught, 875 F.3d 1168, 1174 (8th Cir. 2017); see Weintraub v. Bd. of 12 Educ. of City Sch. Dist. of City of New York, 593 F.3d 196, 203 (2d Cir. 2010) (“Speech 13 can be ‘pursuant to’ a public employee’s official job duties even though it is not required 14 by, or included in, the employee’s job description.”); Renken v. Gregory, 541 F.3d 769, 15 774 (7th Cir. 2008) (grant administration fell within scope of professor’s teaching duties); 16 Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007) (written statement 17 was pursuant to official duties because it “was part-and-parcel of [plaintiff’s] concerns” 18 about his ability to do his job). 19 Alozie clearly indicated in his statement that his work “to close the ‘Revolving 20 Door’ of minority scholars leaving ASU . . . [because] ASU was simply a stopover and . . . 21 [not] a place to build a career” was conducted in his role as chair of the ASU Black Caucus, 22 a role which he took because one of his “two hats” at ASU “is that of a community diversity 23 leader helping to build an environment conducive for women and minority scholars to 24 succeed at ASU.” (Doc. 137-1 at 199–200.) Alozie’s deep knowledge about the career 25 trajectories of minority scholars at ASU owes its existence to his professional 26 responsibilities as a diversity leader; therefore, Alozie’s statement about the “‘Revolving 27 Door’ of minority scholars” was pursuant to his official duties. The Court declines to 28 address whether statements made during job interviews for internal promotions are always 1 pursuant to official duties. 2 Having resolved that Alozie was not speaking as a private citizen, the Court must 3 inquire whether it was clearly established on December 1, 2014 that Alozie’s statement 4 constituted academic speech under Demers such that it was protected, or merely constituted 5 non-academic speech that receives no protection. Prior to “the decision in [Demers], [the 6 Ninth C]ircuit ha[d] not addressed the application of Garcetti to teaching and academic 7 writing.” Demers, 746 F.3d at 417. Demers was the first “Ninth Circuit law on point to 8 inform defendants about whether or how Garcetti might apply to a professor’s academic 9 speech,” id., but, “[r]ecognizing [the] limitations [of] judges,” the Ninth Circuit 10 “hesitate[d] before concluding that [the judiciary] know[s] better than the” university. Id. 11 at 413. 12 Demers clearly established an exception to Garcetti for academic speech, but did 13 not clearly establish what constituted academic speech. In the months between the issuance 14 of Demers and Alozie’s interview on December 1, 2014, only two cases substantively 15 addressed Demers. 16 Hodge v. Antelope Valley Cmty. Coll. Dist. reduced the Pickering test to only four 17 questions, concluding that “Demers . . . effectively eliminated [the official duties] inquiry 18 with respect to public school teachers and professors’ academic speech.” No. CV 12-780 19 PSG (EX), 2014 WL 12776507, at *5 & n.4 (C.D. Cal. Feb. 14, 2014). However, the Hodge 20 court did not explore the boundaries of academic speech because the speech at issue in 21 Hodge was the plaintiff’s words, tone, and gestures during a lecture, and a lesson plan for 22 a future lecture, and therefore was unequivocally “teaching” under Demers. Id. at *4–*8. 23 Murray v. Williams noted that the Demers opinion “significantly shifted [First 24 Amendment retaliation] law in employees’ favor, but . . . only applies to academic 25 speech,” and did not address the issue of academic speech any further. 46 F. Supp. 3d 1045, 26 1060 (D. Nev. 2014). Murray was reversed in part by the Ninth Circuit, which found that 27 the district court erred by concluding the speech addressed matters of public concern and 28 held that even if the plaintiff’s First Amendment rights were violated, the defendants were 1 entitled to qualified immunity because the rights were not clearly established. Murray v. 2 Williams, 670 F. App’x 608, 609 (9th Cir. 2016) (citing Moran v. State of Wash., 147 F.3d 3 839, 847 (9th Cir. 1998) (“Because the underlying determination pursuant 4 to Pickering whether a public employee’s speech is constitutionally protected turns on a 5 context-intensive, case-by-case balancing analysis, the law regarding such claims will 6 rarely, if ever, be sufficiently ‘clearly established’ to preclude qualified immunity.”)). 7 Alozie bears the burden of proving that it was clearly established that his speech 8 was academic, and he has not done so. Moran, 147 F.3d at 844. The Court holds that on 9 December 1, 2014, it was not clearly established whether Alozie’s speech during his job 10 interview constituted academic speech for the purposes of Demers such that it was subject 11 to the Pickering test, or whether it was non-academic speech such that it was unprotected 12 under the Garcetti test.12 Accordingly, the Court holds that Tromp is protected by qualified 13 immunity against Alozie’s First Amendment claim. Summary judgment will be granted. 14 Accordingly, 15 IT IS ORDERED ASU’s Motion for Summary Judgment (Doc. 135) is 16 GRANTED IN PART AND DENIED IN PART. ASU’s motion is GRANTED as to 17 Alozie’s race or national origin discrimination claim. ASU’s motion is DENIED as to 18 Alozie’s retaliation claim. 19 IT IS FURTHER ORDERED Tromp’s Motion for Summary Judgment (Doc. 136) 20 is GRANTED. 21 This matter is ready for trial on Alozie’s retaliation claim. Accordingly, the Court 22 enters the following orders. 23 12 In determining whether the contours of the right are clearly established, the Court may 24 “look at unpublished decisions and the law of other circuits, in addition to Ninth Circuit precedent.” Jessop, 936 F.3d at 941 (quoting Prison Legal News v. Lehman, 397 F.3d 692, 25 702 (9th Cir. 2005)). The Fourth Circuit, which has created a similar academic speech exception in “the public university setting,” stated that Garcetti does not apply to the 26 speech of “a public university faculty member” unless the “assigned duties include a specific role in declaring or administering university policy,” concluding that Pickering is 27 the better analysis because it “permits a nuanced consideration of the range of issues that arise in the unique genre of academia.” Adams v. Trustees of the Univ. of N.C.-Wilmington, 28 640 F.3d 550, 563–64 (4th Cir. 2011). But both parties in Adams agreed that the speech at issue involved scholarship and teaching. Id. at 563. 1 IT IS ORDERED all Motions in Limine are due February 18, 2020. Responses 2 are due ten days afterward. No replies are permitted unless ordered by the Court. Prior to 3 filing any Motion in Limine, the parties must confer and discuss the contents of each 4 planned motion. No Motion in Limine should be filed if the other party does not oppose 5 the relief requested. 6 IT IS FURTHER ORDERED the Joint Proposed Pretrial Order, if not already 7 filed, is due February 18, 2020. 8 IT IS FURTHER ORDERED the parties shall review the Court’s standard Juror 9 Questionnaire (available on the Court’s website) and submit NO MORE THAN 5 10 PROPOSED QUESTIONS EACH to be added to the standard Juror Questionnaire with 11 the Court’s approval no later than February 5, 2020. Each proposed question shall stand 12 alone and shall not contain sub-parts. 13 IT IS FURTHER ORDERED the parties shall submit a Joint Statement of the 14 Case, of no more than a few short sentences for the Juror Questionnaire, no later than 15 February 5, 2020. 16 IT IS FURTHER ORDERED Alozie shall submit a brief statement, of no more 17 than 28 lines, explaining the amount and type of damages he will seek, no later than 18 February 5, 2020. 19 IT IS FURTHER ORDERED the parties shall submit a second Joint Statement of 20 the Case, of no more than two short paragraphs to be read to the jury, no later than 21 February 18, 2020. 22 IT IS FURTHER ORDERED no later than February 18, 2020, the parties shall 23 file and submit via email (silver_chambers@azd.uscourts.gov) in Word format proposed 24 Jury Instructions in compliance with the procedures available on the Court’s website, 25 including but not limited to: 1) a joint set of proposed jury instructions where the parties’ 26 instructions agree; 2) a separate set of instructions (one for each party) where the parties 27 do not agree; and 3) legal authority supporting all proposed instructions whether the parties 28 agree or not. Where the parties do not agree, the opposing party shall clearly state its 1 objection to the proposed instruction and the proposing party shall clearly state its response. 2 IT IS FURTHER ORDERED the parties will jointly file a proposed form of 3 verdict, or if the parties do not agree, they may separately file proposed forms of verdict 4 no later than February 18, 2020. 5 IT IS FURTHER ORDERED no later than February 18, 2020, the parties shall 6 deliver to chambers excerpts of the deposition testimony they propose to present at trial, in 7 compliance with the procedures available on the Court’s website (found in Deposition 8 Designation Procedure for Judge Silver), including but not limited to: Plaintiffs 9 highlighting in yellow the portions they wish to offer and Defendants highlighting in blue 10 those portions they wish to offer. If either party objects to the proposed testimony, a 11 specific and concise objection (e.g., “Relevance, Rule 402”) shall be placed in the margin 12 adjacent to the proposed testimony. 13 IT IS FURTHER ORDERED a final pretrial conference is set for March 18, 2020 14 at 2 pm, at which time the Court will review Juror Questionnaires. The parties shall meet 15 and confer prior to this date regarding the Juror Questionnaires and email to the Courtroom 16 Deputy no later than noon on March 17, 2020 a list of any jurors they agree should be 17 stricken for cause, along with any objections to jurors they do not agree should be stricken 18 for cause. The parties shall not file this list. The Court will rule on any disputed jurors 19 at the final pretrial conference. 20 The parties will be supplied a disk containing the questionnaires approximately 21 one week prior to the final pretrial conference. Counsel shall bring a copy of the 22 questionnaires to the conference for review. Counsel are required to return the disk 23 to the Courtroom Deputy and destroy all copies of the questionnaires no later than 24 the last day of trial. 25 IT IS FURTHER ORDERED trial to a jury is set for March 24, 2020 at 9:00 am. 26 Estimated length of trial is 3 days. 27 … 28 … 1 IT IS FURTHER ORDERED the parties shall comply with the Exhibit Procedures 2|| found on the Court’s website at www.azd.uscourts.gov / Judges’ Information / Orders, || Forms & Procedures for Hon. Roslyn O. Silver. 4 Dated this 7th day of January, 2020. 5 fo . 6 —— .

g Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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