Qualified immunity for university president's letter re employee


The 9th Circuit has held that a university president is entitled to qualified immunity in a due process suit arising out of an allegedly stigmatizing letter regarding an employee. Kramer v. Cullinan (9th Cir 01/03/2018) [PDF].

Ronald Kramer was employed by Southern Oregon University on an annual contract. His jobs were to be executive director of two organizations – Jefferson Public Radio and JPR Foundation. The University performed an audit which concluded that it was contrary to policy to have one person serving in both roles. Dr. Mary Cullinan – then President of the University – formed a task force to address implementation of the recommendations in the audit. Meanwhile, Kramer drew up some proposed resolutions for the JPR board. Cullinan sought legal help, and the lawyers sent a letter to JPR's lawyer, saying that the University considered Kramer's proposed resolutions counterproductive, and requested that JPR's Board not adopt the proposed resolutions. The letter also outlined potential avenues of legal redress against JPR, its board, and/or Kramer.

Among other things, the letter opined that directors' and officers' liability policies generally "exclude coverage for intentional acts, waste, or fraud." Kramer considered the following portion of the letter to be stigmatizing:

"Nor do we see a clear path to indemnity. Article X of the bylaws forbids indemnification for actions taken in bad faith or through willful misconduct. If any actions of Mr. Kramer or the Foundation's directors (including past actions and the adoption of the Proposed Resolutions) are determined to have been made in bad faith or through willful misconduct, neither Mr. Kramer nor the Foundation's directors will be entitled to indemnification, and they are unlikely to be entitled to protection under any directors' and officers' liability insurance."

The letter also requested that JPR's lawyer transmit the letter to JPR board members. The letter was made public at a JPR  board meeting, and the press was there. Later, Cullinan notified Kramer of the non-renewal of his contract.

Kramer sued the University and Cullinan asserting a number of claims. The case at hand deals with his claim that Cullinan deprived him of a liberty interest without due process of law. In response to Cullinan's motion for summary judgment on qualified immunity, the district court concluded that the letter contained stigmatizing charges against Kramer, that the charges were made public, and that the charges were connected to Kramer's termination. The district court also held that Kramer's constitutional right was clearly established. The 9th Circuit reversed, holding that Cullinan was entitled to qualified immunity.

The 9th Circuit found that the letter was not in fact stigmatizing. The court put it this way:

"The difficulty with Kramer's argument is that the Letter stopped far short of actually imputing bad faith, willful misconduct, intentional acts, waste, or fraud to Kramer. Rather, the Letter stated that if the actions were later determined to constitute bad faith or willful misconduct, insurance coverage would not be available."

As if that were not enough, the 9th Circuit also held that the constitutional right asserted by Kramer was not clearly established (a necessary element to defeat qualified immunity):

"By the time of Kramer's termination, it was clearly established law that an employer charging an employee with fraud, dishonesty, or immorality is required under the Fourteenth Amendment to afford that employee a nameclearing hearing. [citations] However, that generalized statement of the law was not sufficient to put Dr. Cullinan on notice that her particular actions violated Kramer's constitutional rights."

Friends, I could have shown that letter to any non-lawyer and they would have said that it didn't say anything naughty about Kramer. Unfortunately it took a lot of litigation to get a court to say that.