Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 1 of 38 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE _____________________________________________________________ MICHAEL G. KATZE, ) ) Plaintiff, ) ) v. ) ) ANA MARI CAUCE, in her official ) capacity as President of the ) University of Washington; ) CASE NO. C15-02035-TSZ GERALD J. BALDASTY, in his official ) Capacity as Interim Provost of the ) SEATTLE, WASHINGTON University of Washington; ) January 15, 2016 CHERYL A. CAMERON, in her official ) capacity as University of ) MOTION FOR A TRO Washington Vice Provost for ) Academic Personnel; PAUL G. RAMSEY, ) in his official capacities as ) University of Washington Chief ) Executive Officer of UW Medicine, ) Executive Vice President for ) Medical Affairs and Dean of the ) School of Medicine; ) JOHN T. SLATTERY, in his official ) capacity as University of ) Washington Medical School Vice ) Dean for Research and Graduate ) Education; and JAMES J. CHAMPOUX, ) in his official capacity as the ) Chair of the University of ) Washington Department of ) Microbiology, ) ) Defendants. ) ) ____________________________________________________________ VERBATIM REPORT OF PROCEEDINGS BEFORE THE HONORABLE THOMAS S. ZILLY UNITED STATES DISTRICT JUDGE _____________________________________________________________ Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 2 of 38 APPEARANCES: For the Plaintiff: JON HOWARD ROSEN Rosen Law Firm 705 2nd Avenue, Suite 1200 Seattle, WA 98104-1798 For the Defendants: MICHAEL J EWART LAURIE LOOTENS CHYZ ANDREW MURPHY Hillis Clark Martin & Peterson 1221 Second Ave, Suite 500 Seattle, WA 98101-2925 Reported by: NANCY L. BAUER, CCR, RPR Federal Court Reporter 700 Stewart Street, Suite 17205 Seattle, WA 98101 (206) 370-8506 nancy_bauer@wawd.uscourts.gov 2 Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 3 of 38 1 2 3 4 5 6 7 3 January 15, 2016 10:00 a.m. PROCEEDINGS _____________________________________________________________ THE CLERK: Case No. C15-2035-TSZ, Michael Katze v. Ann Marie Cauce, et al. Counsel, please make your appearances for the record. MR. ROSEN: My name is John Rosen, Your Honor. I represent Dr. Katze, who is the plaintiff in this matter. 8 THE COURT: Good morning, Mr. Rosen. 9 MR. EWART: Good morning, Your Honor. Jake Ewart, 10 from Hillis Clark Martin & Peterson, for the defendant. 11 me at counsel table is Jessica Russell from the Attorney 12 General's Office University Division; Dr. James Champoux, 13 Chair of the Department of Microbiology at the School of 14 Medicine is also with me. 15 Director of Personal Guidance at the University of Washington 16 School of Medicine; and my colleagues, Andy Murphy and Laurie 17 Lootens Chyz, from Hillis Clark Martin & Peterson. 18 19 20 THE COURT: With Here is Marie Westermeier, Good morning to everyone, and welcome to federal court. I met briefly off the record with the lawyers, and I just 21 want to explain to those of you here in the courtroom who 22 were not present that the matter does involve matters of a 23 sensitive nature. 24 of the public record already, most of the pleadings have been 25 filed under seal, appropriately, and I just discussed with And although some of the matters are part Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 4 of 38 1 the lawyers and reminded them, suggested to them that, to the 2 extent possible, their comments here in open court be 3 discreet to the extent possible without interfering with your 4 ability to make your arguments so that all of the parties' 5 rights can be protected. 6 To the extent they're not already out in the public, I 7 can't do anything about that, but I think this is a public 8 hearing, so this transcript will not be sealed. 9 would -- I would consider any motion to seal it, but I would 10 11 I suppose I be very reluctant to seal a transcript of a public hearing. So with that in mind, we have set this time aside for oral 12 argument in connection with the plaintiff's motion for a 13 temporary restraining order. 14 Mr. Rosen, you may proceed. MR. ROSEN: 15 16 Thank you, Your Honor. We're here before you on the plaintiff's motion for a 17 temporary restraining order in this matter, and in order to 18 obtain a restraining order, Dr. Katze needs to establish that 19 he has a likelihood of success on the merits; that the 20 hardships tip -- or the balance of hardships tip in his 21 favor; that there's a likelihood of irreparable harm; and 22 that the public interest is served by granting his motion for 23 a TRO. 24 25 4 He's here with two claims: That his property rights were violated, first -- excuse me -- he was denied due process, Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 5 of 38 1 first, and that his property rights were denied, and 2 secondly, that his liberty rights or interests were denied 3 both under the Fourteenth Amendment of the United States 4 Constitution. 5 As far as the merits go, in order to establish a property 6 right, he needs to show that he had a property right, and he 7 shows that very clearly, and I don't think there's any 8 dispute about that by virtue of the fact that he is a tenured 9 professor at the University of Washington. 10 He has to show that he was deprived of a right, and as we 11 argued in our motion, he doesn't have to show that he was 12 terminated, because that's actually still an open question in 13 the courts, and in the Ninth Circuit, it appears to tip more 14 in our favor. 15 16 17 The Gilbert v. Homar case, the Supreme Court case, left that as an open question. THE COURT: It didn't quite answer it. Well, doesn't Learner v. City of 18 Bellevue, cited in the briefs, suggest that termination is 19 necessary in order to have a property interest that's been 20 deprived? 21 MR. ROSEN: Well, you know, that case, like a lot of 22 the cases that come before the courts, involve termination, 23 so they don't get to the issue of what if there is something 24 less than termination but is still a deprivation? 25 And the Vanelli case, although it's talking in context of 5 Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 6 of 38 1 the liberty interest when it raises that, talks about losing 2 a right that is guaranteed by state law or rule. 3 And I have argued here that the tenure right that the 4 plaintiff, Dr. Katze, enjoys is much broader than just 5 drawing a salary. 6 "home assignment," but more than that, I mean, he is not 7 allowed to contact his staff. 8 this is going to -- and there's factual support for that from 9 all the declarations -- most of the declarations that we And he has been put on what is called He is basically isolated, and 10 submitted, that he can't do his job, and that's tantamount to 11 being terminated. 12 just tenure rights are broader. 13 14 15 THE COURT: Yes, he's getting his salary, but it's Help me understand the progression of how this developed. My understanding is that early on, perhaps as early as 16 last August, he was put on house assignment, but he was 17 permitted to go to his lab, he was permitted to directly 18 communicate with most of the staff, and that he violated the 19 restrictions on not talking to the key people who have been 20 involved, Jane Doe and Mary Roe, and that he did, in fact, 21 discuss matters with at least one of them, and ultimately he 22 was told again, in writing, I think in September, and 23 ultimately he violated again. 24 25 6 Now, is there any factual dispute with the concept that he was told he could go to the office, to the lab, he could Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 7 of 38 7 1 work, he could talk to his assistants and his staff, but he 2 was told he couldn't talk to these other people, and he then 3 violated that direction from the university? 4 factual issue there? 5 6 7 8 9 MR. ROSEN: Do we have a Yes, we do, because it's a little bit more complex than that. THE COURT: I'm sure it is. I have a stack of papers that is two feet high. MR. ROSEN: When he was originally placed on home 10 leave in August -- it was about the 16th or 18th or 14th of 11 August, right around there, the middle of August -- the 12 strictures were quite, quite extreme. 13 apparent to Dr. Champoux, who had, as the chair, issued the 14 directive, that it really wasn't practical, and he allowed 15 Dr. Katze leeway. 16 But it soon became There were requirements that Dr. Katze had to follow. He 17 had to contact Dr. Champoux and make arrangements for going 18 in, and there were some limitations on where in the building 19 he could meet with people. 20 because it just -- it became clear that wasn't a workable 21 situation. 22 And that evolved over time, The lab really couldn't function. Now, yes, he did contact Ms. Roe on a few occasions. 23 Never Ms. Doe. He had no contact with her, at least as far 24 as I know. 25 contradicts that belief. I don't think there's anything in the record that Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 8 of 38 8 1 He needed to contact Ms. Roe for business purposes. 2 this was a relationship, as we know, that they had, and he 3 was concerned about her. 4 situation outside of work that was extremely distressing for 5 her, and would have been for anybody. 6 know. 7 involved in -- 8 9 10 But She had just been involved in a She was -- I don't It has nothing to do with the facts here, but she was THE COURT: I think you said it all. It has nothing to do with this case. MR. ROSEN: And it's clear from the record, Dr. Katze 11 had very intensive feelings for her welfare, and so he would 12 communicate with her occasionally. 13 But as you can see from the earlier communications between 14 them, it was a rather tempestuous relationship. 15 she was warm and inviting and enticing even. 16 the written communications, she's more standoffish. It was 17 not a healthy relationship, no question about that. They 18 weren't married. 19 that is reality. 20 Sometimes Other times, in He was married to someone else. All of But to get to your point, it wasn't a workable situation, 21 and it was recognized as such by the university, and they 22 allowed him more and more access, until December 22, when 23 they dropped the curtain on him and said no contact, and then 24 the next morning, met with his lab staff and told them that 25 they couldn't contact him, and you've seen and read the Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 9 of 38 1 2 9 declarations from them. And it means sooner rather than later that the lab is 3 going to have close, and it means dozens of jobs, it means 4 loss of revenue to the university as well as to, obviously, 5 the employees, who some of them may be able to be shifted to 6 other work. 7 THE COURT: Mr. Rosen, let's focus now. We're not 8 here on some complaint by employees other than your client. 9 The university has the lab, it owns the labs, it's the owner 10 11 of any grants that they've been receiving. So the question really is whether or not your client has 12 been, at this point in time, deprived of some liberty or 13 property interest in violation of the Fourteenth Amendment. 14 So let's stay with that. 15 MR. ROSEN: Well, and -- and by the way, I think the 16 liberty side of this two-sided coin, property and liberty, it 17 is stronger for Dr. Katze because, as I alluded to a few 18 minutes ago, I haven't found any cases right on point that 19 say other than termination for the property rights side, 20 which you referred to a little while ago. 21 THE COURT: Well, the Mustafa case is one of the 22 leading cases in the Ninth Circuit dealing with termination 23 of a public employee, which includes publication of 24 stigmatized charges that triggers the due process. 25 But doesn't there have to be a termination or doesn't the Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 10 of 38 1 2 10 charge have to be in connection with the termination? MR. ROSEN: Vanelli suggests otherwise. Now, I know 3 Vanelli was decided before Mustafa, but, nevertheless, 4 Mustafa was a termination case. 5 discuss this issue of what about a lesser deprivation than 6 termination, and Vanelli makes it very clear. 7 So there's no opportunity to It says termination or a loss of -- and I'm not quoting 8 here, I'm paraphrasing -- another opportunity, some other 9 adverse action, and that's what we have here. We definitely 10 have an adverse action, and it's certainly the first step 11 towards termination. 12 part of that process. 13 If termination is a process, this is The documents that have been submitted indicate that the 14 university has taken the next step, and they've sent the -- 15 and this was in, I believe, the response in opposition to our 16 motion, that they now sent the file -- Mr. Messerle, the 17 UCIRO investigator, sent the file to the provost, and then 18 there's this hearing, or the potential for adjudication. 19 This is an interminable process, and in the meantime, 20 Dr. Katze is in a purgatory, where all around him the lab is 21 collapsing, and it's going to be gone. 22 be anything left by the time the adjudication panel gets to 23 hear all the evidence of what he's being accused of, which, 24 of course, he denies. 25 There's not going to And, you know, I'm prepared to get into that. Why he wins Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 11 of 38 11 1 is that there is no sex harassment. 2 is complicit. 3 for hostile environment sex harassment, there has to be 4 unwanted behavior. 5 The conduct of Jane Doe There is no finding that it was unwanted, and THE COURT: We're not here today to evaluate the 6 merits or the underlying claims that are being made. 7 question is, as of this moment or in the immediate future, is 8 there some loss of your client's -- I think you were focusing 9 on the liberty interest, that has violated or will violate 10 The the constitution? 11 MR. ROSEN: Yes. 12 THE COURT: We're not going to decide today -- I've 13 read all of the declarations, trust me, and there's lots of 14 conflicting testimony by the various declarants. 15 here today to decide that. 16 17 18 19 20 21 MR. ROSEN: We're not I'd like to just take one second to respond to that, the declarations. There are no declarations of anyone with firsthand knowledge of those issues. THE COURT: I noticed there was a lot of second- and third-hand knowledge. 22 MR. ROSEN: Exactly. But to answer your question -- 23 THE COURT: But the investigator talks to witnesses 24 and prepares what he did. He could come into court and 25 testify about what he did and who he talked to, could he not, Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 12 of 38 1 and why he reached the conclusions he reach? 2 admissible. 3 4 That would be MR. ROSEN: But not for the truth of what he was THE COURT: No, but for purposes of determining what told. 5 6 the university would do and not do in connection with the 7 matter. That declaration, certainly. 8 And in Dr. Champoux's declarations, he tells us what he 9 did, when he talked with your client, and what direction he 10 gave your client. 11 knowledge, is it not? MR. ROSEN: 12 That's certainly based on personal Well, first with regard to Mr. Messerle, 13 he can testify as to his state of mind, but he can't testify 14 as to the truth of what he was told and present that as 15 truth. 16 12 You need to have the declarants themselves. But as far as Dr. Champoux, his testimony, there's no 17 dispute that Dr. Katze, I'll used the word "flouted" 18 Dr. Champoux's direction on occasion. 19 I mean, he wasn't really secretive about it. 20 to Dr. Champoux and say, "We can't run the lab this way." 21 And that's the bottom line, and that's where the harm has 22 occurred. But he did so openly. He would talk He cannot run his lab. 23 And the cases that the defendants cite, there's -- where 24 people have been transferred, they're still doing their job. 25 There are policemen who have gone to different jobs within Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 13 of 38 13 1 the department, there are state employees who have been 2 reassigned, teachers that have been reassigned, but not 3 someone whose whole department just collapses in his absence, 4 and that's where the harm is here. 5 irreparable harm, because once it's gone, it's gone. 6 And that is the As far as the hardships go, the balancing of hardships, 7 the university talks about, "Oh, well, we could be subjected 8 to lawsuits. 9 policies on harassment." We have a responsibility with regard to our Yes, they do. And you know I'm 10 usually here arguing that employers should be vigorously 11 enforcing their policies on discrimination and harassment, 12 and I applaud them for doing so. But there has to be a 13 violation of the policies first. And I know you don't want 14 to get into that issue, so I won't, but there just hasn't 15 been a showing of the violation of the policies. 16 cloaking themselves in a flag without any substance. 17 That's just If the lab closes, the university suffers as much if not 18 more than the individuals with the loss of that revenue of 19 the grants. 20 hardships tipping in their favor. 21 22 23 24 25 And so it's not a matter of the balance of With regard to the public interest -THE COURT: It's not his lab. It is the university's lab, is it not? MR. ROSEN: lab, Your Honor. Well, technically it's the university's But the professors don't think of it that Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 14 of 38 14 1 way, and the staff doesn't think of it that way. As a matter 2 of fact, all of the labs are named after the professors. 3 It's the Katze lab, it's the Champoux lab. 4 professors are. It's whatever the Whatever school, it's their lab. Yes, there is a document -- the money from the NSF or the 5 6 NIH or the Department of Defense, whatever the granting 7 agency might be, sends the money to the University of 8 Washington. 9 processes. I mean, these are important accounting But the lab belongs to the professor, the research 10 11 scientist, in all material ways, other than the legal ways. 12 That's the way it's viewed. 13 it. That's the way the employees see 14 THE COURT: Tell me what relief you're seeking today. 15 MR. ROSEN: I'm asking that he be allowed to return 16 to his laboratory, unfettered. 17 THE COURT: What does that mean? 18 MR. ROSEN: He can do his job. He can communicate 19 with his staff, he can go to work every day, he can oversee 20 the experiments, he can check -THE COURT: 21 He can do the scientific work. Are 22 either Mary Roe or Jane Doe presently still employed at the 23 lab? 24 MR. ROSEN: Employed, yes. 25 THE COURT: Well, let me reword that. Do they work Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 15 of 38 1 there presently? MR. ROSEN: 2 3 4 15 Jane Doe is on an indeterminant leave. We, of course, don't have access to the specifics. Mary Roe is still working there, as far as I know. But 5 she hasn't -- you don't see a declaration from her saying, "I 6 can't work with Michael," and you're not going to get that 7 declaration. THE COURT: 8 9 10 Mr. Rosen, are you suggesting that he then could have contact at the lab with Ms. Roe? trying to understand what you're asking for. MR. ROSEN: 11 Because of the nature of her job, I mean, 12 she does a lot of the scheduling. 13 person. 14 scheduling, she does communications work for him. 15 there most likely would be contact. 16 I'm just She's an administrative She is not a scientist or a researcher. Could it be less? Could she work from home? She does So, yes, Probably. 17 But, again, I don't want to suggest that, because I get my 18 hackles up when an employer says, "Well, your client has 19 claimed she's a victim of harassment and just doesn't have to 20 go to work. 21 handling it. We'll still pay her." I don't like that way of 22 THE COURT: We share that view, Mr. Rosen. 23 MR. ROSEN: So, yes, there would have to be some 24 25 contact. But as a practical matter, enough time has elapsed since Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 16 of 38 16 1 the summer of this past year, and it's clear to me that their 2 relationship is moving on. 3 4 He has never done anything to her to cause her to fear for her job. THE COURT: 5 6 7 8 All right. We can avoid discussing that relationship any more. So you want him to go back to work, and to work while this investigation continues? MR. ROSEN: 9 10 He's never really threatened -- Correct. And then the other part of our request for injunctive 11 relief is that the agencies not be contacted. 12 course, if he's back at work, then there would be no reason 13 to contact the agencies. 14 But, of So it really is -- if he goes back to work, the agencies 15 need not be contacted. 16 certainly want the university to be enjoined from -- and, of 17 course, the individuals, not the university itself, to not 18 contact the agency. 19 THE COURT: 20 But if he doesn't go back to work, we All right. I think I understand your position. 21 MR. ROSEN: Thank you very much, Your Honor. 22 MR. EWART: Your Honor, Jake Ewart for the 23 24 25 defendants. This is not a case, Your Honor, that justifies injunctive relief. Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 17 of 38 1 17 As the court knows, UCIRO uncovered significant evidence 2 of misconduct, and there is not a case anywhere that says the 3 university, in the face of that evidence, has to permit 4 Dr. Katze continued access to his lab and business as usual. 5 Nowhere. 6 In fact, quite the opposite. As the court pointed out, case after case tells us that 7 the university, in these circumstances, can reassign 8 Dr. Katze, as it has done, with pay until the processes are 9 complete. 10 Right? The Loudermill case, for example, is very clear about 11 this. 12 want to avoid due process issues relating to property or 13 liberty, you can suspend with pay. 14 reassigned, placed on home assignment with pay. 15 deprivation, there is no constitutional issue here. 16 If you want to avoid constitutional issues, if you Here, he's been There is no Right? And this was done following a very long, very thorough 17 investigation. 18 million documents. Right? And Dr. Katze has been involved 19 in this process all along. He's had five meetings with the 20 university with an opportunity to learn about the 21 allegations, to offer his side of the story. 22 those meetings with his lawyer. 23 evidence. 24 25 Several months, 26 witness interviews, a He went to He could offer documentary And in those meetings, he didn't deny the substance of the allegations. Right? In his reply brief, in his supplemental Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 18 of 38 18 1 declaration he admits he agreed to undisputed facts. 2 says it doesn't constitute sexual harassment. 3 disagrees. THE COURT: 4 He just Well, UCIRO Well, it's not quite as clear as that, is 5 it? 6 the investigator conclude that she was not credible and that 7 some of the serious allegations she made were not -- he 8 didn't accept that? 9 10 With respect to the first complainant, Jane Doe, didn't And with respect to Mary Roe, doesn't everybody understand it to have been, at least, a consensual type of relationship? 11 MR. EWART: No, Your Honor. 12 THE COURT: No? 13 MR. EWART: It is true that the investigator didn't 14 find corroborating evidence for some of Ms. Doe's 15 allegations, but he found plenty for others. 16 for others, because he is a thorough and objective 17 fact-finder. 18 evidence carefully. 19 weren't. 20 Right? He found plenty He took his time, and he reviewed the Some things were corroborated, others With respect to Ms. Roe, my goodness, there is mountains 21 of evidence that this was a workplace relationship. 22 part of her job, and she understood it that way. 23 This was Right? And the university, in the face of that evidence, simply 24 cannot do nothing. It is obligated to protect its employees 25 from sexual harassment, and it took very, very reasonable Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 19 of 38 1 2 steps along the way to make sure it was doing it. And -- and that's what happened. The evidence mounted. 3 The university took action first in August by placing 4 Dr. Katze on home assignment; permitting him, with 5 permission, access to the lab when it was important; 6 permitting him to contact certain lab employees, but not 7 Ms. Roe and Ms. Doe. 8 9 19 And there is significant evidence in the record that he did not comply. He contacted the lab staff about the UCIRO 10 investigation. 11 placed additional restrictions, reminded Dr. Katze in 12 September not to contact lab members about the investigation, 13 not to contact Ms. Doe or Ms. Roe. 14 And in the face of that, the university Again, in October, the university gets notice from both 15 UCIRO and Ms. Roe that Dr. Katze is coming to her office, her 16 stomach is in knots, and he's asking about the investigation, 17 "What are you saying to UCIRO?" 18 that the university wants. 19 This is not the behavior So going forward, there's more process available to 20 Dr. Katze. Right? There's been a report of the misconduct 21 from UCIRO to the provost. 22 whether to initiate an adjudication and impose discipline. The provost is now considering 23 THE COURT: Was that a written report, the provost? 24 MR. EWART: It was. 25 THE COURT: Mr. Rosen raises, in his reply, the Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 20 of 38 20 1 concept that, under the Washington State Public Disclosure 2 Act, that might be a public document. 3 statute. 4 perhaps, are not subject to the disclosure. 5 view on the subject? 6 I looked at the I think that employee records of a privacy nature, MR. EWART: Some of it may be. What is your Some of it might be. 7 If Joe Smith on the street asked for it, I'm not sure how 8 much of it they'd get. 9 Mr. Rosen has it. I can tell you, as I stand here today, 10 to my knowledge nobody has seen it, except for UCIRO, the 11 provost's office, the three professors who were advising the 12 provost, my office, and Mr. Rosen's office. 13 beyond that, I'm not aware of it, and it didn't come from me. 14 If it's gone And so the provost is going to review this report and make 15 a decision. 16 adjudicate charges, there will be a full adjudication, and 17 Dr. Katze is going to have an opportunity, again -- once 18 again, to tell his side of the story. 19 If the provost decides that there is cause to And by the way, this adjudication process, as we said in 20 our papers, is available to Dr. Katze right now. If he 21 believes the university has violated its regulations in 22 placing him on home assignment, he can ask for relief through 23 the adjudication process tomorrow, or Tuesday. 24 done that. 25 complain he hasn't had due process. He hasn't And he can't now come to federal court and He's had plenty already. Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 21 of 38 21 1 He's had lots of notice of the charge against him, lots of 2 opportunities to talk to the university about his side of the 3 story, and he's got more available if he wants it. 4 THE COURT: How do you respond to Mr. Rosen's 5 argument that all of this investigation and the procedures 6 will take a great deal of time, and when it's all over, the 7 lab will be gone, and there won't be the ability to return to 8 any kind of a lab that he's involved with? 9 MR. EWART: Well, as to whether the lab is gone or 10 not, that's speculative. 11 the court pointed out. 12 are the university's obligation. 13 those jobs were seriously, but it also takes sexual 14 harassment very seriously, and it's not going to permit 15 Dr. Katze to continue operating as he has in its lab for the 16 sake of not having to figure out what to do with these grants 17 going forward. 18 THE COURT: And those are not his grants, as Those are not his employees. Those And the university takes Help me understand how he can do any 19 meaningful work from home when he can't communicate directly 20 with any of his staff. 21 MR. EWART: Right? He can communicate through Dr. Champoux, 22 for example. So he can review manuscripts, he can 23 review data, he can ask Dr. Champoux for additional 24 information as he needs it. 25 so that's -- that's what we're interposing here, an He's got an intermediary. And Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 22 of 38 22 1 intermediary so there is not direct contact between Dr. Katze 2 and the lab staff, and especially Ms. Doe and Ms. Roe. 3 And so he can work on coursework. 4 that. 5 have a constitutional right to pick and choose all aspects of 6 his duties. 7 in some way, it would be a constitutional case. 8 case anywhere that says there's a constitutional problem with 9 his being placed on a home assignment like this pending 10 It's not the same. We've provided for It's not the same. But he doesn't If he did, every time a professor was reassigned There's no resolution of the investigation. THE COURT: 11 Home assignment has been approved on 12 multiple occasions in dealing with public employees. 13 you imagine home assignment with restrictions that would, 14 essentially -- it may not be a formal termination, but it be 15 such that it would be the same or substantially the same as a 16 termination? MR. EWART: 17 That's not what we have here, and it's 18 not irreparable. 19 undone. 20 professor. 21 so it's very different from that kind of hypothetical 22 situation. 23 But can Nothing has been done here that can't be He's on home assignment. He's still a tenured He's still getting paid his full paycheck. And And so, Your Honor, as a legal matter, there's been no 24 constitutional deprivation, period. 25 professor. He's still retained as a He's still receiving his pay. He has not availed Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 23 of 38 23 1 himself of the processes even available to him. 2 know, those processes can resolve all of these issues, if 3 they go forward. 4 And, you So because he hasn't had any kind of constitutional 5 deprivation, there is no likelihood he can succeed on the 6 merits. 7 about a professor who is still has tenure and who is still 8 receiving his full pay. 9 There's no irreparable harm here. We're talking The equities strongly favor the university. We've got 10 serious allegations of misconduct, serious evidence of that 11 misconduct, and the university absolutely has to take action 12 and make sure it doesn't continue. 13 And for that reason, the public interest is in the 14 university's favor. 15 ensuring that public employees are not subject to continual 16 sexual harassment or retaliation in the workplace. 17 university has taken quite reasonable steps to prevent that 18 from happening. 19 20 21 22 THE COURT: The public has a very strong interest in And the Thank you, counsel. Mr. Rosen, a brief rebuttal? MR. ROSEN: Just a few, Your Honor. It's not a hypothetical situation. It is happening. 23 Dr. Champoux, just the other day, sends out a broadcast email 24 to the entire faculty of the microbiology department, 25 individuals who have no need to know that there is an Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 24 of 38 24 1 investigation going on about a personal and professional 2 misconduct. 3 THE COURT: Mr. Rosen, you filed that memo to the 4 microbiology faculty. Would you not agree that what is 5 stated there is less informative than your complaint that you 6 filed in the public record? 7 MR. ROSEN: Yes. 8 THE COURT: All right. 9 MR. ROSEN: But it is still publication. I don't 10 have the case right in front of me, but I wouldn't be 11 surprised if you know which one I'm talking about, where it 12 says that certainly self-publication is not publication, but 13 it doesn't suggest that -- if he's in a position where he has 14 to defend himself, where the publication has already taken 15 place, everybody in his lab, the investigator -- as the 16 declarants who are lab employees said, they were told 17 intimate details that were not necessary to be told. 18 didn't need to know this information. 19 potential witnesses, but they didn't need to know the 20 intimacies of the allegations. 21 22 23 They They may have been By the way, the false allegations, the allegations that Mr. Messerle himself said were false. Michael Katze cannot do his job. 24 terminated. 25 Dr. Champoux is just not reality. He has, in effect, been To say that he can do his job through It is a fiction. Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 25 of 38 1 25 For him to do his job, he has to be able to communicate. 2 Try to imagine talking to 30 people, each time having to send 3 an email first to Dr. Champoux, who then communicates to the 4 employee, who then communicates back through Dr. Champoux. 5 It's unworkable. 6 There's nobody in the lab -- nobody in the lab who says, 7 "I can't work with Dr. Katze," "I'm afraid of Dr. Katze," "I 8 don't want to be sexually harassed anymore by Dr. Katze." 9 They don't exist. 10 11 12 There is no harm to anybody and no harm to the university. Thank you, Your Honor. THE COURT: All right. Thank you, counsel. 13 Well, as I indicated at the beginning, I have had an 14 opportunity to read all of the declarations, and this is an 15 area of the law that the court has, from time to time, been 16 called upon to consider, so I'm confident that I can present 17 you now with an oral ruling, and I will not otherwise be 18 entering an order. 19 connection with the plaintiff's motion for a TRO. 20 This will be the ruling of the court in First, I think it's fair to say that Dr. Katze is a 21 distinguished member and tenured professor of the University 22 of Washington's Department of Microbiology. 23 research laboratory located at a university facility here in 24 Seattle, and approximately 30 people work at that lab under 25 his direction. He's head of a And he has, by all accounts, had great Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 26 of 38 1 success and has been instrumental in helping the university 2 obtain grants to fund that laboratory. 3 26 This matter began to develop when a University of 4 Washington administrative employee, who is referred to in the 5 complaint as Jane Doe, contacted the university, alleging 6 sexual misconduct. 7 was July 23rd of last year. 8 9 10 11 This occurred in the middle -- I think it The university, appropriately, began an investigation, and in late July, through the University Complaint Investigation and Resolution Office, started an investigation. In August, the School of Medicine commenced a second 12 parallel investigation, which is referred to in the 13 declarations as the 25-71 investigation of the matter. 14 During the fall of last year, Mr. Messerle, the 15 investigator working for the resolution office, interviewed 16 26 witnesses, apparently met with the plaintiff on at least 17 four or five occasions, and on almost every occasion, 18 Mr. Rosen, his attorney, was present. 19 how many of the meetings Mr. Rosen was present, but I know on 20 several. 21 MR. ROSEN: I'm not sure exactly Your Honor, I don't think it's 22 particularly pertinent, but he only met twice with 23 Mr. Messerle, and the second time was just to get an oral 24 report from Mr. Messerle. 25 THE COURT: All right. Well, I think there's some Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 27 of 38 27 1 disagreement on that, but it's not material to the court's 2 ruling. 3 The fact is that they were conducting an investigation and 4 attempting to talk to the various witnesses who were 5 involved. 6 7 8 9 During the investigation, plaintiff has been represented by counsel. Plaintiff was told, at the beginning of the August, about the nature of the investigation. He was given various 10 examples of emails that were being collected by the 11 investigator. 12 Future meetings occurred. By at least September, it may have been before September, 13 the investigation also related to Mary Roe and possible 14 connections with her and the plaintiff here. 15 As a result and for the reasons outlined in the various 16 declarations, which I'm not going to go into detail about, 17 they are filed under seal, and the parties and the lawyers 18 are familiar with it, the university has concluded that the 19 plaintiff may have violated university policies. 20 On August 18th, I believe the date is, the university 21 first placed the plaintiff on home assignment by a letter, 22 Champoux declaration Exhibit 3, which is filed in the record 23 at Docket 30-3. 24 25 The plaintiff was permitted to continue the research, not to have contact with Jane Doe or Mary Roe directly. That was Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 28 of 38 28 1 supplemented by another letter on September 21, Exhibit 5 to 2 Dr. Champoux's declaration. 3 Apparently, it's undisputed that, notwithstanding the written 4 directions, the plaintiff did have some contact, at least, 5 with Mary Roe. 6 That is to have no contact. As noted in the plaintiff's motion, the investigation and 7 potential charges related to honesty and morality. 8 sort of what's contained in the plaintiff's complaint and the 9 motion at Docket 5. 10 That's No final decision has been made, but the plaintiff alleges 11 that, essentially, virtually all of the plaintiff's functions 12 of his job have been eliminated by this, essentially, house 13 assignment or home assignment. 14 That home assignment was modified even further in December 15 of last year when the university notified the plaintiff he 16 could no longer go to the building, although he was permitted 17 to go back to the building and work during the fall for some 18 period of time. 19 the building, you can't communicate with any of the 20 employees, any communication has to be through the 21 intermediary," which was Dr. Champoux. But in December they said, "You can't go to 22 And that is, essentially, where we are today. 23 The university has, as of January 13th of this year, after 24 this lawsuit was filed, and the court is aware that there 25 have been declarations from various people in the department, Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 29 of 38 1 and a certain amount of social media communications is part 2 of our world today. 3 notified that there was an ongoing matter involving the 4 plaintiff, which involves both sensitive and confidential 5 issues that arise out of allegations of personal and 6 professional misconduct. 7 allegations seriously, and I'm paraphrasing now, and the 8 investigation is continuing. 9 29 But in any event, the faculty was The university takes the It seems to me that it was appropriate that the 10 university, at some point, notify the microbiology faculty in 11 the form that they did notify them, something they probably 12 already knew, but in an appropriate, formal notice to them. 13 It, I think, and plaintiff's counsel, I think, concedes 14 that nothing in that notice gave any suggestion or said 15 anything that would be more damaging, if you will, to the 16 plaintiff's reputation or good standing in the community, 17 other than what's already been filed in the public record as 18 a result of the complaint. 19 So the question is, plaintiff alleges that the defendants 20 have impaired his reputation for honesty and morality, 21 created a stigma, and he's been denied due process of his 22 liberty and property rights, and he asks for a temporary 23 restraining order, basically directing the university to 24 allow -- or directing the individual defendants, the 25 university is not a party, but the substance would be the Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 30 of 38 30 1 same, allowing him to work in his lab with the staff while 2 this investigation proceeds, and to necessarily have 3 contact -- some sort of contact with the one employee, Jane 4 Doe, because she is an administrative scheduler. 5 And also the plaintiff asks me to order the individual 6 defendants not to notify the granting authorities. Clearly, 7 that type of relief would not be appropriate in this 8 circumstance with respect to notifying other grantors. 9 are university grants. These They're not the plaintiff's property. 10 The university needs to take whatever action the university 11 thinks is appropriate. 12 record, they've at least notified a major grantor in a way 13 that was sensitive, I think, to the whole situation, and that 14 there's been no adverse results as a result of that notice, 15 which is all well and good for all concerned. 16 And as I understand it from the A temporary restraining order is an extraordinary remedy. 17 It's not an award or a right. The plaintiff has the burden 18 to establish a likelihood of success on the merits, the 19 likelihood of irreparable harm, and that the balance of 20 equities tip in favor of a TRO, and that an injunction or TRO 21 would be in the public interest. 22 The Ninth Circuit has also articulated a second test, 23 which is called the Winter test, or a sliding scale, where a 24 weaker showing on the merits combined with a stronger 25 demonstration on the balancing might warrant some sort of Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 31 of 38 1 2 preliminary relief. As I've indicated, the plaintiff asks the court to 3 intervene in the ongoing process and restore unfettered 4 access to his lab and university employees. 5 The question is whether or not the plaintiff has been or 6 will possibly, in the immediate future, be denied a property 7 or liberty interest under the Fourteenth Amendment. 8 9 It's undisputed that he's still a tenured professor at the university. He's still receiving all his full pay and 10 benefits. 11 is necessary and prudent steps to protect both its employees 12 and the integrity of the university. 13 31 And the School of Medicine has taken what I think The court understands the law. To require, in order to 14 have a violation, an actual violation of either a property or 15 a liberty interest, that there be a termination or a complete 16 change in the property rights or the liberty rights of the 17 public employee. 18 In my opinion, this has not occurred at the present time. 19 He's not been terminated. He has been restricted in how he 20 performs his work. 21 university, no doubt. 22 that are being considered by the university are serious, and 23 under all of the circumstances, I'm satisfied that the 24 university procedures and the limitations on his access, 25 directly, are appropriate under all the circumstances. It's not ideal either for him or the But the circumstances and the charges Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 32 of 38 1 Federal courts have almost universally concluded that a 2 change in a public employee's duties unaccompanied by a 3 reduction of salary or a termination or some other 4 significant event does not trigger due process obligations. 5 6 The Learner v. City of Bellevue case out of this district, decided in 1988, sets forth that standard. 7 The Mustafa v. Clark County School District, 157 F.3d 8 1169, a Ninth Circuit case, again in 1998, provides that, to 9 show a deprivation of narrow liberty interest was involved, 10 an employee must show the accuracy of the charges contested, 11 that there's some public disclosure, the charges made in 12 connection with termination. 13 termination here, there are not liberty interests which have 14 been violated to a point where any kind of TRO is 15 appropriate, in my opinion. 16 32 And because there's been no The defendants have not publicized stigmatic statements 17 against the plaintiff. The university, based on all the 18 declarations that I've been able to read, have been 19 attempting to do this, essentially, in a dignified and 20 private and confidential way, to address serious issues 21 dealing with possible sexual misconduct, and along the way, I 22 think it's also important in my ruling today that the 23 plaintiff has had the representation of very able counsel 24 from early on, and this has been an ongoing process, and 25 based on everything I've read in the declarations, the Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 33 of 38 33 1 university and the investigator, specifically, has kept the 2 plaintiff advised of not only the nature of the 3 investigation, the nature of the charges, but provided the 4 plaintiff with the various pieces of evidence, which were -- 5 many of which, not all of which, but many of which were 6 attached to Mr. Messerle's declaration, which is filed under 7 seal. 8 9 The plaintiff has received, in my opinion, and is receiving due process. There is a very well-documented 10 administrative procedure that the plaintiff is entitled to 11 under the university rules and procedures. 12 The provost has only recently received the report, and no 13 final decision has been made by the university as to what 14 they are to do. 15 It's my understanding that, notwithstanding no decision, 16 that the plaintiff himself could begin the administrative 17 proceedings under the university rules and regulations. 18 plaintiff has, as is his right, chosen to come here to 19 federal court, but federal courts are very reluctant to be 20 involved and to make decisions prior to the parties 21 exercising their administrative rights under the various 22 employment plans and regulations that they have. 23 The I do not believe that the plaintiff will suffer any 24 irreparable harm in the absence of this temporary restraining 25 order. As I've indicated, he's still a tenured professor. Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 34 of 38 34 1 He's being paid full salary and benefits. 2 decides to file some sort of petition for adjudication, he'll 3 have an opportunity to, essentially, go through the process 4 and object and offer evidence and be represented. 5 If the provost The balance of equities here strongly favors the 6 defendants. The investigation has uncovered evidence which 7 would support a finding of the workplace where, 8 unfortunately, things were said in a way that would no doubt 9 be of concern to the university. They have -- and I'm not 10 going to outline all of the matters they have looked at and 11 concluded, but there's clearly enough substance here for the 12 university to have taken the steps of making the 13 investigation and considering what to do under all the 14 circumstances. 15 These claims do involve sexual harassment in the 16 workplace. The public interest strongly favors doing 17 everything we can to avoid sexual harassment in the 18 workplace. 19 complainants, although she hasn't filed any sexual harassment 20 claim, felt that sexual conduct was, essentially, part of her 21 job description. 22 knew the plaintiff before she was hired. 23 the record suggests that there was sexual activity. 24 will be for another day and another -- for someone else, 25 perhaps, to determine whatever and to what extent that was There's evidence that at least one of the She was in some sort of -- she, at least, She was hired, and And it Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 35 of 38 35 1 all consensual, whether there was any merit or any substance 2 or anything that was inappropriate as to that relationship. 3 But under all the circumstances, and given the 4 investigation, the process that has occurred to date, and the 5 fact that it's ongoing, it would be inappropriate for this 6 court to enter a temporary restraining order. 7 Having said that, Mr. Rosen, I know that you're entitled 8 to have a motion for a preliminary injunction. We had a 9 thorough vetting, I think, of the circumstances here. 10 appreciate the declarations on both sides, and as I've 11 indicated, I've read it all. 12 I'm going to propose to you that, given the court's 13 ruling, and I would have to say that there is almost no 14 likelihood of success in connection with whether you're 15 entitled to an injunction. 16 merits of all this will come to. 17 complicated. 18 I I'm not suggesting what the That's much more Witnesses' credibility will have to be judged. But in any event, having concluded that there is no 19 reasonable likelihood that you're going to be successful, the 20 specific requests that you have made is asking for injunctive 21 relief, based on a property interest or a liberty interest 22 that's been violated under the constitution. 23 I'm inclined to enter an order today that would stay this 24 case and allow the administrative proceedings to go forward. 25 I can always lift the stay upon motion and a showing that Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 36 of 38 36 1 it's appropriate or something has changed that would make the 2 court consider lifting the stay. MR. ROSEN: 3 But what do you think? Based on your ruling, I agree that it 4 would most likely be futile to have a hearing on a 5 preliminary injunction and that a stay would be appropriate. THE COURT: 6 7 Thank you. And a complaint, it is really for injunctive relief. 8 MR. ROSEN: That's all. 9 THE COURT: That's all. 10 MR. ROSEN: It certainly could be amended down the 11 road for damages, but at this time it's only for injunctive 12 relief. 13 THE COURT: All right. Well, I'll have the minutes 14 reflect and it will reflect that the court will order that 15 this case to be stayed pending further order of the court. 16 I don't know if we sent you our standard request for a 17 status report, but if we have, you can ignore it. 18 is stayed. 19 The case I encourage the parties to seek out, perhaps, an 20 intermediary, if possible, to try and resolve this interest. 21 There's obviously good people on all sides of this equation, 22 and there's others that may be affected by how it proceeds, 23 and the university has an interest in continuing the great 24 work in the medical field that they do. 25 it's possible to figure out how to make this work in a way And to the extent Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 37 of 38 37 1 that's advantageous to all sides, it would certainly be to 2 everyone's benefit. 3 But I don't think we can do anything further today. 4 be in recess, and I thank you for the arguments and the 5 briefs and the opportunity to hear your story. 6 MR. ROSEN: Thank you, Your Honor. 7 THE COURT: We'll be in recess. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (THE PROCEEDINGS CONCLUDED.) We'll Case 2:15-cv-02035-TSZ Document 42 Filed 01/29/16 Page 38 of 38 C E R T I F I C A T E I, Nancy L. Bauer, CCR, RPR, Court Reporter for the United States District Court in the Western District of Washington at Seattle, do hereby certify that I was present in court during the foregoing matter and reported said proceedings stenographically. I further certify that thereafter, I have caused said stenographic notes to be transcribed under my direction and that the foregoing pages are a true and accurate transcription to the best of my ability. Dated this 18th day of January 2016. /S/ Nancy L. Bauer Nancy L. Bauer, CCR, RPR Official Court Reporter 38