Prof Jennifer Freyd’s work gets influential citation – from South Park

While UO’s lawyer Paula Barran – acting as the agent of President Schill and the Board of Trustees – has argued it’s OK to pay Freyd less because she doesn’t use bodily fluids or “sophisticated brain imaging” in her research, it appears that her ideas have a power of their own.

DARVO is the acronym she coined to explain a common way for bullies to respond to accusations of wrongdoing – as explained in the latest South Park episode:

Thanks to reader Dogmatic Ratios for the link. 39K views last I looked. How should this citation get weighted in Brad Shelton’s faculty metrics and merit pay increases?

Live up to your Mission, UO

That’s the title of this Op-Ed in the RG today by Jennifer Gomez, one of Jennifer Freyd’s many excellent students. Read it all, here are some snippets:

… However, when people from across the country hear where I am from, invariably someone will ask, “What is the matter with University of Oregon?”

People reference the ongoing lawsuit of Freyd vs. University of Oregon regarding sex discrimination under The Equal Pay Act, Title VII, Title IX and Oregon’s state sex discrimination statute. Professor Jennifer J. Freyd is being paid tens of thousands of dollars less per year than her male counterparts. UO responded by filing for summary judgment, which Judge Michael McShane granted. In doing so, the judge denied Freyd the opportunity to have a trial and present her case to a jury. McShane’s reasoning is, “The evidence establishes that her four male colleagues perform significantly different work than that done by Professor Freyd.”

This appraisal runs counter to the detailed guidelines for all professors that was put forth by the UO psychology department. The university has additional guidelines for professors as well.

The case is not over as Freyd’s legal team has appealed the summary judgment to the Ninth Circuit Court of Appeals. The goal of this appeal is to have the right to go to trial so a jury can make a determination on the case.

Importantly, Freyd has some powerful players on her side: The American Association of University Professors filed an amicus brief in support of Freyd’s case; Equal Rights Advocates and 47 women’s and civil rights organizations filed another amicus brief in support of Freyd’s case; and the American Association of University Women has adopted Freyd’s case as one it will support as it moves through the appellate process.

… Though I can’t prevent UO from its behavior in this case, there are people at UO right now who can. From President Michael Schill to General Counsel Kevin Reed to the board of trustees. It’s not too late. UO could still choose to live up to its mission of equity and inclusion. If for no other reason, UO could remember that its reputation as a top public university is on the line. Gender equality matters at universities like UO.

The world is watching.

Jennifer Gomez, Ph.D., UO Alumna, is an assistant professor in the Department of Psychology and Merrill Palmer Skillman Institute for Child & Family Development at Wayne State University.

 

 

Updated with Barran’s response: UO’s lawyer Paula Barran significantly exaggerated Freyd comparator’s grant to Judge McShane

Update, 11/4/2019:

Dear Readers –

Last week (Halloween to be precise) I received a letter from Attorney Peter Jarvis of the HK law firm. At his request I’ve added the full text to this post (at the bottom) and the pdf is here. He is representing Attorney Paula Barran, who was hired by UO GC Kevin Reed and AGC Doug Park to represent the UO administration against attorney Jennifer Middleton, who is representing Prof. Jennifer Freyd in her gender discrimination lawsuit. So he’s a lawyer for a lawyer who’s a lawyer for other lawyers, at a university whose president is a lawyer.

Frightening. However, I have to say that this is the most polite take-down request I’ve ever received. There’s none of the “govern yourself accordingly” bluster I get from UO GCO Kevin Reed, or the late-night defamation lawsuit threats that I used to get from his predecessors Doug Park and Randy Geller, not to mention Dave Frohnmayer and his lawyer Bill Gary.

Quoting from Mr. Jarvis:

UO Matters self-identifies as a registered institutionalized news media organization. As such, and based upon that public representation, it should hold itself to the journalistic standards expected from other media organizations. Ethical journalism requires authors to take responsibility for the accuracy of the work and ensure that they are not misrepresenting or oversimplifying the story or permitting their personal values to shape their reporting.

… I therefore respectfully request that the Article be retracted and removed from the UO Matters site.

If, however, you decline to do so, a copy of this letter should be posted to the site so that your readers can form their own opinions based on a fuller recitation of the facts and so that UO Matters can more closely comply with the ethical responsibilities expected of a news media organization.

An appeal to ethics is an unusual argument for a lawyer to make – particularly to an economist – but maybe he’s a fan of Adam’s Smith’s other book. In any case tit-for-tat is often the best strategy, so I’m adding the full text of his letter to the bottom of this post.

Additionally, although he did not request this, I am changing the title of the post from the original “UO’s lawyer Paula Barran lied to Judge McShane about Freyd comparator’s grant” to “UO’s lawyer Paula Barran significantly exaggerated Freyd comparator’s grant to Judge McShane” in recognition of the arguments he makes in this letter, which I encourage you to read.

Unfortunately, he then goes on to threaten me with a DMCA takedown notice if I don’t also remove the screenshot of his client below:

The Article includes a screenshot of Ms. Barran’s profile on the Barran Liebman LLP website. Barran Liebman LLP has copyrighted the material on its site and does not grant UO Matters the right to use its copyrighted material. If Barran Liebman LLP’s copyrighted material has not been removed from the UO Matters site within five (5) days, my clients will file a DMCA Takedown Notice.

Seriously? Back in April I sat through two hours of Ms Barran’s legal arguments in front of Judge McShane, and she is ripe for parody. As is anyone who brings up “bodily fluids” more times than Stanley Kubrick. I’m thinking my brief clip from her lengthy profile is allowed under the parody “fair use” provision in copyright law, and of course news-worthiness, as Mr. Jarvis seems to acknowledge this post is.

Of course DMCA takedown orders are frequently abused, and Mr. Jarvis is an attorney with a deep-pocket client, so don’t be surprised if my ISP takes down this post or even this blog for a while – which would be sad, given Ms Barran’s claimed interest in allowing people to form their own opinions.

Original post, 10/17/2019:

UO GC Kevin Reed and his associate GC Doug Park hired “top point getter” Paula Barran to defend the UO administration against Professor Jennifer Freyd’s gender discrimination lawsuit:

Apparently they know better than to dirty their own hands.

As shown in the court transcript below, Barran claimed that one of the comparator faculty Freyd identified was better than Freyd because “he just secured – while this case was pending – a $3 million grant from the Gates Foundation for his work.”

That wasn’t true. The Gates Foundation is admirably transparent:

The truth, corroborated by an email from Prof. Allen, is this:

He was a co-investigator on a grant from the Gates Foundation, but the grant was obtained by colleagues at Berkeley. He had a small subcontract. He also noted that the grant had very little to do with the digital sensing work.

I don’t know what the long-run consequences are for a lawyer who lies to a judge, but it seems from Judge McShane’s opinion dismissing Freyd’s lawsuit that it worked for the UO administration in the short-run:

McShane’s full opinion is here, the full docket is here, and I’ll post Kevin Reed’s retraction of Paula Barran’s $3M claim as soon as I get a copy.

10/17/2019: UO lawyers use helium-cooled MRI brain scanner against Prof Freyd

Freyd is appealing Judge McShane’s dismissal of her gender discrimination lawsuit against UO, with support from Equal Rights Advocates, the AAUP, the AAUW, etc, as explained here. Meanwhile the full transcript from the oral arguments in front of McShane have now been posted here. Some excerpts:

Yes, super-cooled super-conducting 3 Tesla magnets, bodily fluids, and grants can be tools to do good research. But it’s surprising to see a university pay a lawyer to use them to denigrate other research methods. And I wonder how the Gates Foundation feels about being weaponized for use against faculty they don’t fund.

This was almost as funny and not as sad:

Actually it was Judge McShane who said this, not the clerk. And I’m sure he was glaring at Schill when he said it. Or at me.

More 11/4/2019 update, full letter text, pdf here:

October 31, 2019

Via E-mail (harbaugh@uoregon.edu)

Bill Harbaugh
UO Matters
c/o University of Oregon, Department of Economics
1285 University of Oregon
Eugene, OR 97403

Re: UO Matters Article Dear Professor Harbaugh:

I represent Paula A. Barran and Barran Liebman LLP, and I am writing in response to the article published on UO Matters on October 17, 2019 titled “UO’s lawyer Paula Barran lied to Judge McShane about Freyd comparator’s grant” (the “Article”). The opinions expressed in the Article about the accuracy of Ms. Barran’s statement to the court are both incorrect and inflammatory. In fact, Ms. Barran’s statements were supported by and based upon the sworn declaration previously submitted to the court by Dr. Nicholas Allen. Calling Ms. Barran’s integrity into question in this manner and in light of the sworn witness declaration simply because you do not agree with the court’s ultimate conclusion does not advance the meaningful thought and discussion that the UO Matters site purports to promote.

UO Matters self-identifies as a registered institutionalized news media organization. As such, and based upon that public representation, it should hold itself to the journalistic standards expected from other media organizations. Ethical journalism requires authors to take responsibility for the accuracy of the work and ensure that they are not misrepresenting or oversimplifying the story or permitting their personal values to shape their reporting. Soc’y of Prof’l Journalists, SPJ Code of Ethics (rev. Sept. 6, 2014), https://www.spj.org/ethicscode.asp.

Ethical journalism further requires an author to continue to monitor their story and correct any inaccuracies that may emerge. Id. As discussed further below, the opinions expressed in the Article are inaccurate and must be corrected. I therefore respectfully request that the Article be retracted and removed from the UO Matters site.

If, however, you decline to do so, a copy of this letter should be posted to the site so that your readers can form their own opinions based on a fuller recitation of the facts and so that UO Matters can more closely comply with the ethical responsibilities expected of a news media organization.

I. The Facts

Ms. Barran and her firm Barran Liebman LLP were retained to defend the University of Oregon and Dean Hal Sadofsky against a lawsuit brought by Dr. Jennifer Freyd. Dr. Freyd’s lawsuit alleged several theories of gender discrimination based upon the fact that she received less total compensation than some of her male colleagues. In order to succeed on her claims, Dr. Freyd was required to show that she and her comparators do the same or substantially equal work and that she is comparing “like to like.” Dr. Freyd selected four (4) of her more highly-compensated, male colleagues as comparators, including Dr. Nicholas Allen. Dr. Freyd also called into question whether there were similarities or dissimilarities between her work and the work of her comparators—this legal comparison was not initiated by either the university or her colleagues.

Both the university’s and Dr. Freyd’s attorneys thoroughly briefed the legal issues and provided information to the court about Dr. Freyd’s job duties as compared to the comparators’. The parties provided information to the court about the comparators’ additional responsibilities, such as being a department head, director of a center, or director or member of a university-wide committee, employee supervision, and grant revenue and administration, as well as the effect of retention offers.

Dr. Allen submitted a declaration to the court on November 16, 2018, in which he stated:

Dr. Jennifer Freyd is a valued colleague, and I strongly support the University adopting policies and procedures that support and enhance gender equity in all areas of academic life. I am not in a position to have an informed view on my colleague’s specific litigation, but I understand that it may be beneficial to the court to have information about the nature, extent and scope of my day to day duties, responsibilities and accountabilities.

Decl. of Nicholas B. Allen in Support of Def.’s Univ. of Oregon and Sadofsky’s Mot. for Summ. J., Freyd v. Univ. of Oregon, No. 6:17-cv-00448-MC, Dkt. No. 59, at ¶ 2 (D. Or. Nov. 16, 2018). The declaration then described Dr. Allen’s grant work in the following way:

In terms of the specific research grants I hold, I have obtained or participated in obtaining funding for a 2018-22 research project on Mobile Assessment for the Prediction of Suicide, a grant in excess of $3 million from the National Institute of Child Health and Development for a study of Depressed Mothers’ Parenting (which began in 2015 and will run to 2020), a $2.7 million grant from the National Institute of Mental Health, on which I spoke as Co-Investigator with my University colleague, Jennifer Pfeifer, doing work on a longitudinal neuroimaging study related to early adolescent mental health. The grant from the Bill and Melinda Gates Foundation, on which I am Co-Investigator, is an award of $3.5 million to develop and test a learning investigation with a goal of promoting positive gender norm transformative social emotional learning in early adolescents. I have successfully completed a number of grant-funded projects and have developed the skills and experience to work successfully on large funded research projects.

Id. at ¶ 6 (emphasis added). In a subsequent filing made on behalf of Dr. Freyd, Dr. Allen confirmed to the court that “all the information in that declaration was factual.” Decl. of Nicholas B. Allen in Support of Pl.’s Mot. for Relief from J., Freyd v. Univ. of Oregon, No. 6:17-cv-00448- MC, Dkt. No. 59, at ¶ 2 (D. Or. Sept. 10, 2019).

The court heard oral argument on the Defendants’ Motion for Summary Judgment on April 12, 2019. During oral argument, Ms. Barran reiterated the importance of grants in funding both faculty compensation and research space and equipment. She also recognized that Dr. Freyd “is a good researcher, but her work is different” than some of the work being done by the comparators, including their meeting the requirements imposed by government funding sources. Ms. Barran then highlighted that Dr. Allen had received significant funding for his work, including “a $3 million grant from the Gates Foundation.” This statement was supported by and based on the information that had been provided to her by Dr. Allen and that Dr. Allen had sworn to in his declaration to the court.

The court ruled in favor of the university because the various laws under which Dr. Freyd based her claims require her to show that her day-to-day responsibilities are the same or substantially equal to those of the comparators that she identified. Freyd v. Univ. of Oregon, No. 6:17-cv-00448- MC, Dkt. No. 93, at pp. 10–11 (D. Or. May 2, 2019). The additional responsibilities associated with grant applications, receipt, and management were among several factors considered by the court, and the court’s comparisons between Dr. Freyd on one hand and the comparators (including Dr. Allen) on the other, relied upon the information in the sworn declarations that had been submitted into the court’s record. Id.

Dr. Allen later sent a letter in support of Dr. Freyd’s appeal stating that he personally believes that a different methodology should be used to determine faculty compensation. Decl. of Nicholas Allen, Ex. 1, Freyd v. Univ. of Oregon, No. 6:17-cv-00448-MC, Dkt. No. 109-1 (D. Or. Oct. 25, 2019). The letter was also submitted to the district court in support of a motion filed by Dr. Freyd’s attorneys for relief from judgment. Id. The district court considered Dr. Allen’s letter, noted that Dr. Allen reaffirmed the factual accuracy of his original declaration, determined that receiving the letter earlier would not have changed the disposition of the case, and affirmed its grant of summary judgment in favor of the defendants. Opinion and Order, Freyd v. Univ. of Oregon, No. 6:17-cv- 00448-MC, Dkt. No. 114 (D. Or. Oct. 25, 2019).

II. Copyright Infringement

The Article includes a screenshot of Ms. Barran’s profile on the Barran Liebman LLP website. Barran Liebman LLP has copyrighted the material on its site and does not grant UO Matters the right to use its copyrighted material. If Barran Liebman LLP’s copyrighted material has not been removed from the UO Matters site within five (5) days, my clients will file a DMCA Takedown Notice.

If you have any questions, concerns, or would like to discuss my demands and requests further, please contact me at Peter.Jarvis@hklaw.com or (503) 243-5877.

Sincerely yours,

HOLLAND & KNIGHT LLP

Peter R. Jarvis

PRJ:kfk

cc: Clients (via email)

Peter R. Jarvis

+1 503-243-5877 Peter.Jarvis@hklaw.com

111 S.W. Fifth Avenue, 2300 U.S. Bancorp Tower | Portland, OR 97204 | T 503.243.2300 | F 503.241.8014 Holland & Knight LLP | www.hklaw.com

Freyd lawsuit: Admin witness recants, AAUP, ERA & Dolly Parton support appeal

Update: UO’s response to Prof Allen’s letter is here.

Update: At some point a rational university president with UO’s best interests in mind would tell General Counsel Kevin Reed to swallow his ego, stop trying to overcompensate for his Bowl of Dicks mistakes by blowing tuition money on Barran Liebman’s billable hours, and just settle. Ideally before Dolly Parton joins an amicus brief for the plaintiff:

.

And many more. To quote from Ms Parton’s well-cited work on this subject:

They just use your mind and they never give you credit
It’s enough to drive you crazy if you let it
9 to 5, for service and devotion
You would think that I would deserve a fat promotion
Want to move ahead but the boss won’t seem to let me
I swear sometimes that man is out to get me!

10/1/2019: My most recent post on this lawsuit was back in May: Nevertheless she persisted – Freyd to appeal gender discrimination case.

That appeal has been going pretty well. Last month the UO administration’s star witness, Psychology Prof Nick Allen, wrote to the court, essentially saying that UO’s lawyers had misused his sworn declaration and that he was now supporting her appeal:

Having been at the oral arguments in Judge McShane’s courtroom back in April, I can confirm that UO’s hired attorney Paula Barran‘s use of Allen’s original declaration was indeed polemical, and I’m surprised the judge let her go on and on with so little skepticism. The transcript won’t be public for another two weeks, but it was hard not to snicker when Barran explained the higher importance of research that uses “bodily fluids” and “sophisticated brain-imaging” instead of mere surveys. [Full disclosure: I’ve used all three, sometimes in the same paper. It’s fun persuading grad students to collect spit, but inherently more important?] It seems Prof. Allen also found Barran’s arguments hard to take.

Today the AAUP and Equal Rights Advocates filed amicus briefs in support of Freyd’s appeal. The AAUP brief is here. ERA’s brief is here, it is more interesting, and I’m guessing will be more of a problem for the UO administration:

As a pretty free-market economist, it’s really tiring to hear lawyers trot out “market forces” as an argument. Market forces do all kinds of shitty things – like overproduce negative externalities like pollution and underproduce public goods like education. And no respectable labor economist would argue that the market for professors is anything close to a free market. I thank the ERA for pointing out to the court that this is why we have governments, laws, and courts.

The UO administration’s lawyers have already filed for an extension of time to respond to these arguments, as should be expected given that Barran is billing the university by the hour.

 

 

Nevertheless she persisted – Freyd to appeal gender discrimination case

Gina Scaplone had the story last week in the Emerald.  Colleen Flaherty at InsideHigherEd has more here. Some snippets:

Jennifer Freyd, professor of psychology at the University of Oregon, has spent years studying the concept of institutional betrayal, including when institutions don’t help right the wrongs committed within them.

Now Freyd is battling her own institution in court. She alleges that Oregon failed to properly respond to what her own department chair called a “glaring” pay gap between Freyd and the men she works with — $18,000 less than that of her male peer closest in rank.

The case was just dismissed by a federal judge who said that the pay difference was more about the kind of work the men in her department do and the retention raises they’d secured over the years. But research suggests that even these explanations are rooted in issues of gender. Freyd has already filed a notice of intent to appeal.

… Both reviews traced the disparity back to retention raises given to professors who pursued outside offers. The self-study noted that this was concerning, as “it is not obvious that the frequency of retention negotiations is a strong indicator of overall productivity.” Rather, it said, “there is strong evidence of a gender bias in both the availability of outside offers and the ability to respond aggressively to such offers.” The outside review said it’s “widely recognized that there is a difference between the genders in terms of seeking outside offers, and if this holds at Oregon, then the bias does have a gender basis.”

Cahill attributed the trend to retention raises. And the earlier departmental studies noted that this factor is in itself gendered. Gomez said so, too. Is it?

… More recently, last year, the Collaborative on Academic Careers in Higher Education, based at Harvard University, published some findings of its first national Faculty Retention and Exit Survey.

Insights into the negotiation process suggest “some troubling gender bias,” the collaborative’s staff wrote at the time. “For example, among those who didn’t ask for a counteroffer, men are more likely than women to receive one, anyway; among those who do ask for a counteroffer, women are more likely to be denied.”

…  Despite that evidence, Michael McShane, the federal judge in Oregon who decided Freyd’s case, found her claims uncompelling and sided with the university against her. McShane said that unlike elementary school teachers, all professors do not in fact perform the same work, and that their pay rightfully reflects that. Put another way, equal pay for equal work only means someone when the work is mostly the same for everyone.

… All that aside, however, McShane said that offering retention raises to faculty who are being recruited by other universities is “justified by business necessity.” …

The docket is here. Among the more funny/sad parts of Judge McShane’s decision was his adoption of UO’s hired lawyer Paula Barran’s argument that Freyd should be paid less because she merely did survey research, while the men in her department used sophisticated brain-imaging equipment, and studied “bodily fluids”:

In his research, Professor Allen uses brain imaging and scanning technology, which requires specialized expertise and the supervision of technological staff. Allen Decl. ¶ 9. By contrast, Professor Freyd conducts her research through administering surveys, Freyd Decl. ¶ 16, which does not require advanced technology.

Barran also got a few laughs in court when she described one of Freyd’s notably milquetoast comparator colleagues as a “diversity warrior” – a phrase that suits him not at all, and her perfectly.

UO and President Schill are now going after Freyd for court costs – but nevertheless she is persisting.

Judge McShane dismisses Professor Freyd’s pay discrimination lawsuit

5/3/2019 update: The EW’s Camilla Mortenson has a brief report on the case here. The full opinion is at http://uomatters.com/wp-content/uploads/2019/05/093-19-05-02-Opinion-Order.pdf. The full docket is here.

4/11/2019 update. Arguments about to start. More later.

4/8/2019 update: UO’s attempts to dismiss Freyd lawsuit include redefining “Professor”

Full disclosure: I am not a lawyer.

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