9th Circuit to hear oral arguments in Freyd case May 12, on Zoom

May 12, 2020 update:

UO’s payments to Barran-Liebman (not just this for this case) are running about $280K a year:

12/21/15 Barran Liebman Attorneys  $               690
2/9/16 Barran Liebman Attorneys  $            1,230
2/9/16 Barran Liebman Attorneys  $            1,230
2/15/16 Barran Liebman Attorneys  $            4,272
2/15/16 Barran Liebman Attorneys  $            4,272
2/29/16 Barran Liebman Attorneys  $            2,070
2/29/16 Barran Liebman Attorneys  $            2,070
6/1/16 Barran Liebman Attorneys  $               240
6/2/16 Barran Liebman Attorneys  $          13,890
6/13/16 Barran Liebman Attorneys  $               570
6/15/16 Barran Liebman Attorneys  $          43,932
6/20/16 Barran Liebman Attorneys  $          29,423
6/30/16 Barran Liebman Attorneys  $               510
6/30/16 Barran Liebman Attorneys  $        109,382
10/10/16 Barran Liebman Attorneys  $               175
10/10/16 Barran Liebman Attorneys  $               175
10/12/16 Barran Liebman Attorneys  $               650
10/12/16 Barran Liebman Attorneys  $               700
10/12/16 Barran Liebman Attorneys  $               700
10/12/16 Barran Liebman Attorneys  $               650
12/22/16 Barran Liebman Attorneys  $            7,808
12/22/16 Barran Liebman Attorneys  $          11,035
12/22/16 Barran Liebman Attorneys  $            7,808
12/22/16 Barran Liebman Attorneys  $          11,035
2/10/17 Barran Liebman Attorneys  $          19,000
2/13/17 Barran Liebman Attorneys  $          19,000
3/31/17 Barran Liebman Attorneys  $               390
3/31/17 Barran Liebman Attorneys  $               390
4/13/17 Barran Liebman Attorneys  $          14,592
4/13/17 Barran Liebman Attorneys  $            1,910
4/13/17 Barran Liebman Attorneys  $          14,592
4/13/17 Barran Liebman Attorneys  $            1,910
6/29/17 Barran Liebman Attorneys  $            6,641
6/29/17 Barran Liebman Attorneys  $            6,379
6/29/17 Barran Liebman Attorneys  $               930
7/11/17 Barran Liebman Attorneys  $          11,011
7/14/17 Barran 1/5/17 – Claim 1704-02  $            5,000
7/14/17 Barran 1/5/17 – Claim 1704-02  $          14,000
11/20/17 Barran Liebman Attorneys  $          49,517
12/4/17 Barran Liebman Attorneys  $               250
12/4/17 Barran Liebman Attorneys  $          64,724
2/13/18 Barran Liebman Attorneys  $          44,431
2/19/18 Barran Liebman Attorneys  $          23,393
4/11/18 Barran Liebman Attorneys  $          52,962
4/11/18 Barran Liebman Attorneys  $          44,077
4/11/18 Barran Liebman Attorneys  $               120
4/11/18 Barran Liebman Attorneys  $            2,550
4/11/18 Barran Liebman Attorneys  $            1,650
5/23/18 Barran Liebman Attorneys  $            2,610
6/20/18 Barran Liebman Attorneys  $        117,413
7/10/18 Barran Liebman Attorneys  $        133,860
7/11/18 Barran Liebman Attorneys  $            6,216
7/12/18 Barran Clm 1706-06  $          24,075
7/12/18 Barran Clm 1706-06  $        (24,075)
11/12/18 Barran Liebman Attorneys  $          10,658
11/26/18 Barran Liebman Attorneys  $            1,770
12/10/18 Barran Liebman Attorneys  $            1,680
12/31/18 Barran Liebman Attorneys  $            1,580
1/22/19 Barran Invoices July – Oct 2018  $            3,060
2/4/19 Barran Liebman Attorneys  $               490
2/19/19 Barran Liebman Attorneys  $            8,950
3/22/19 Barran Liebman Attorneys  $          15,949
4/15/19 Barran Liebman Attorneys  $            4,330
4/29/19 Barran Liebman Attorneys  $            2,910
5/29/19 Barran Liebman Attorneys  $            2,114
Total  $        967,522

May 10, 2020 update:

(Note: All my posts on this case are here, including the most recent take down threat from UO’s Lawyer Paula Barran, here. Haven’t heard a peep from her since.)

The link is at https://www.ca9.uscourts.gov/media/live_oral_arguments.php and I assume on Tuesday they’ll have a link to live-streaming at the Pioneer Courthouse (Portland). Court opens at 9AM and this is the third case, so it will probably start sometime after 9:40, although for the circuit court arguments Judge McShane inexplicably kept a full courtroom waiting for 20 minutes, so who knows.)

Cases are heard by a randomly drawn subset of three appeals court judges, and this panel includes recent Trump appointee Lawrence VanDyke. Wikipedia reports on his nomination process:

The nomination was to the seat being vacated by Judge Jay Bybee, who previously announced his intention to take senior status on December 31, 2019.[13] Six retired justices of the Montana Supreme Court publicly opposed VanDyke’s nomination.[14]

VanDyke received a “not qualified” rating from the American Bar Association. ABA evaluators conducted 60 anonymous interviews with lawyers, judges, and others who had worked with VanDyke. The ABA published a scathing critique of VanDyke in a letter to the Senate Judiciary Committee; that letter asserted that interviewees described VanDyke as “‘arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice'” of law.[15] The ABA added that “‘There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful'”.[16]

The Senate confirmed him 51-44.

The second member is Kathleen Cardone, a G.W. Bush appointee whose most cited opinion regards labor law and progressive discipline. She found for the employer.

The third member of the panel is the Honorable Jay Bybee, of whom wikipedia notes:

While serving in the Bush administration as the Assistant Attorney General for the Office of Legal CounselUnited States Department of Justice, he signed the controversial “Torture Memos” in August 2002. These authorized “enhanced interrogation techniques” that were used in the systematic torture of detainees at Guantanamo Bay detention camp beginning in 2002 and at the Abu Ghraib facility following the United States’ invasion of Iraq in 2003.

He was confirmed by the Senate before his role in the torture memos was revealed.

Dec 3, 2019: Updates on Prof Jennifer Freyd’s pay discrimination lawsuit

1: The UO administration could have followed the Psychology department head’s advice and given her a $15K raise 4 years ago. But instead the lawyers that run UO wanted a lawsuit. Her department colleagues are now circulating a letter of support, here:

2: A month later, and UO’s lawyer Paula Barran still hasn’t followed through on her threat to send my ISP a DMCA take-down notice over my posting a clip of her bio sketch:

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.

Presumably her lawyer explained to his “Top Point Getter” client that the fair-use copyright exemption includes parody:

3: Speaking of parody, Barran, Zaerpoor Le, and Bonner have finally filed UO’s response to Freyd’s appeal in the Ninth Circuit, here. Barran has, sensibly, dropped her Kubrickesque rants about “bodily fluids”. Now they are “biological samples”:

4: Meanwhile, Barran convinced the Honorable Judge McShane to make Prof Freyd pay President Schill $3,537.15 in court costs, and the University of Oregon and Hal Sadofsky $7,145.12. Ruling here. Last time GC Kevin Reed did this, in the Bowl of Dick’s case, he paid HLGR’s Bill Gary about $50K to get UO’s costs reduced by about $12K. I’m not sure how many billable hours Barran collected from UO for this, but these things aren’t about the money, they’re about using institutional power to intimidate potential plaintiffs from filing discrimination lawsuits.

5: Barran also seems to have dropped her claim 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’m sure I’m going to get a grateful letter from Barran, or her attorneys, thanking me for pointing out these problems with her prior arguments.

6: The real problem with Barran’s brief is that it reiterates the UO administration and President Schill’s argument, which McShane’s opinion accepted whole-hog, that professors’ jobs are not just different from each other, but so impossible to compare that no female professor will ever be able to identify comparator male professors, and therefore will never be able to win a gender discrimination lawsuit. I’m guessing this is not what the Congress had in mind when they wrote the law against gender discrimination.

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14 Responses to 9th Circuit to hear oral arguments in Freyd case May 12, on Zoom

  1. Cheyney Ryan says:

    “Amiable, affluent liars”–this is how Larry Tribe, my constitutional law prof at Harvard Law, described the typical over-priced hired-gun attorneys–in urging us NOT to become one of them. I think of his description always in dealing with Barran Liebman, the administration’s go-to firm in dealing with discrimination complaints. Their use of this firm in defending themselves against complaints like Jennifer Freyd’s may be understandable-if their goal is to win at all costs, regardless of truth, justice, and honesty. What is unforgivable is employing Barran Liebman–as the adm does–and at great expense to the university–as allegedly neutral investigators of the complaints brought their own administrators. I suppose there is a place in the law for Barran Liebman, as there was a place for Roy Cohn. But not conducting allegedly neutral investigations.

  2. uomatters says:

    Bybee to Barran – I’m a judge. I took a statistics class once. Do you really want me deciding which of 2 statistical analyses is correct?

  3. uomatters says:

    Barran – you have to look at the decisions that lead to the disparate impact. (She hasn’t mentioned bodily fluids, yet.)

  4. uomatters says:

    It would have been way cheaper for society and for UO to have simply let this go to trial. One judge, 12 jurors at $12 a day. Fewer billable hours.

  5. uomatters says:

    Barran – no one is arguing that the fact that a professor is getting outside money to pay their salary changes their job. Really, I thought it was pretty clear she argued just that in front of McShane.

  6. prof from another school says:

    uom, a question? What do you think of Freyd’s lawyer declaring that getting an outside job offer is not an indicator of quality of one’s work that can be used to create pay differentials? This strikes me as complete nonsense, and I can guarantee that when UO tries to poach a faculty member from another school, all involved, including faculty, are aware that the department likely will have to pay above what UO usually pays.
    I don’t know if this case should go to a jury, but there is damn nonsense coming from both sides[ suing schill and the dean personally!!].
    What a mess. and I have read all the public documents in the case.
    I personally think Freyd should have been given the raise yrs ago, based on the quality of her scholarship, independent of grant getting record, etc.. BUT research universities often do not pay attention to accomplishments short of election to NAS [ or equivalent] in the absence of grants, but UO seems particularly naïve about how to build a quality faculty.
    I predict that Freyd will not prevail, even if it goes to trial.

    • uomatters says:

      Here’s some actual data on retention offers, from Harvard’s COACHE survey (which UO has refused to particpate in). https://coache.gse.harvard.edu/blog/findings-first-ever-multi-institutional-survey-faculty-retention-exit-infographic
      “Further, the study’s insights into the negotiation process are suggesting some troubling gender bias. 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.
      Higher education’s “counteroffer culture” has real costs. Faculty are expected to cultivate outside offers before they can ask for a better deal at home. This requirement pushes them out the door: we are finding that nearly 1 in 3 faculty who left had originally sought the offer only to renegotiate the terms of their employment.
      Universities have a “home-field advantage” in retaining dual-career couples. Retentions were nearly twice as likely as departures to have a spouse employed at the same institution. The implications for women are particularly acute: 48% of women versus 21% of men ranked spousal employment as a primary factor in their decision to stay or leave.”

      • prof from another says:

        I am aware of this survey[ I originally sent you the link!]. But to declare that outside offers are not job related, as freyd’s lawyer did, is still nonsense. And Freyd could not come up with any alternative procedures that made any financial sense.
        I still predict her lawsuit will fail.

      • Dog says:

        ah yes
        sqrt(grace) = merit pay

    • Anonymous says:

      what do you mean nigh-eve; we only hire excellent faculty (honestly) and we make sure that we fine tune our metrics to reveal said excellence …. If that is not quality, then I don’t know what is –

      • uomatters says:

        The metrics debate has moved on. The admin no longer cares about research citations and has stopped collecting student satisfaction numbers. Now it’s all about grace. There’s going to be a special app in the faculty tracking software to mine your zoom and canvas meetings for signs of grace. Brad Shelton is puzzling out whether your pay cut should be inversely proportional to demonstrated graceiness, or to ln(graceiness). The union is pushing for a quadratic term, with a negative coefficient.

  7. Publius says:

    Dear U of O Matters –

    Do we know how much the U of O administration has paid Barran Liebman for all this?

  8. It's classified. says:

    It never ceases to amaze me what the administration has money for when it has no money for the people educating kids, and maintaining the campus.

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