Johnson v. UC

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 1, 2000
• Docket: 98-3016
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION 44 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0184P (6th Cir.) File Name: 00a0184p.06 University’s affirmative action procedures and occurred while he was acting in his official position and consisted only of a letter and memos addressed to the president and other members of the Board of Trustees (of which plaintiff was a UNITED STATES COURT OF APPEALS member as Vice President of Human Relations), I think that FOR THE SIXTH CIRCUIT the University had a significant interest in regulating the _________________ speech to make certain that it was presented in the most informative and helpful manner. Had the plaintiff presented ; his concerns in a public venue, my resolution of this issue  would be different. The plaintiff, however, limited his speech JOHN B. JOHNSON,  to the confines of the University and conveyed his views in Plaintiff-Appellant,  his official position as to the success or lack of success of the  University’s affirmative action program. I believe that in this No. 98-3016 v.  situation the plaintiff’s speech is not entitled to First >  Amendment protections. I think that the district court did not UNIVERSITY OF CINCINNATI,  err in granting summary judgment in favor of the defendants

 on plaintiff’s First Amendment claims. JOSEPH A. STEGER, and

Defendants-Appellees.  DONALD C. HARRISON,  1 Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 96-00727—Sandra S. Beckwith, District Judge. Argued: January 29, 1999 Decided and Filed: June 1, 2000 Before: KENNEDY, DAUGHTREY, and CLAY, Circuit Judges. _________________ COUNSEL ARGUED: Marc D. Mezibov, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellant. John B. Pinney, GRAYDON, HEAD & RITCHEY, Cincinnati, Ohio, for Appellees. ON BRIEF: Marc D.

1 2 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 43

Mezibov, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, claim under the participation clause of section 2000e-3(a) Cincinnati, Ohio, Ted L. Wills, Cincinnati, Ohio, for should be liberally construed and his termination occurred in Appellant. John B. Pinney, Michael A. Roberts, GRAYDON, close proximity to his filing of an EEOC claim while HEAD & RITCHEY, Cincinnati, Ohio, for Appellees. complaints with respect to his performance occurred over an extended period, I agree with the majority that the district CLAY, J., delivered the opinion of the court, in which court erred in granting summary judgment on this claim. DAUGHTREY, J., joined. KENNEDY, J. (pp. 39-44), delivered a separate opinion concurring in part and dissenting Finally, I turn to plaintiff’s claims under the First in part. Amendment. While I am aware of the cases in which courts have held that discussions of affirmative action are a matter _________________ of public concern, I do not think those cases apply where the speaker is a high level affirmative action official and the OPINION communications are within the organization. In his position _________________ at the University, the plaintiff’s job was to advocate on behalf of minorities. Technically, every word that the plaintiff spoke CLAY, Circuit Judge. Plaintiff, John B. Johnson, who is during his tenure in this position concerned affirmative action African American, was employed by the University of because of the nature of his job. In the unique circumstances Cincinnati (“the University”) as its Vice President of Human of this case, I do not think that the plaintiff is entitled to the Resources and Human Relations from August 1, 1993 to protections of the First Amendment unless he can show that January 17, 1996, when he was terminated. Central to his speech was not integrally connected with his job. When Plaintiff’s role as Vice President of Human Resources was his considering whether an employee’s speech is protected by the management of the University’s affirmative action program, First Amendment, this Supreme Court has adopted a two part for which Plaintiff had primary responsibility. Following his inquiry. First, the Court asks whether the speech was of termination, Plaintiff filed suit against the University; Dr. public concern. If that question is answered in the Joseph Steger, the University’s president; and Dr. Donald affirmative, the next question is whether the plaintiff’s Harrison, the University’s Senior Vice-President and Provost interest in speaking outweighed the defendant’s interest in of University Hospital, alleging that Defendants discriminated regulating his speech. See Connick v. Meyers, 461 U.S. 138, against him by removing him from his duties because of 146, 103 S.Ct 1684, 1690, 75 L.Ed.2d 708 (1983); Pickering Plaintiff’s advocacy on behalf of minorities and his filing of v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, an EEOC claim against the University. The district court 20 L.Ed.2d 811 (1968). In this case, I do not think that the dismissed or granted summary judgment on all nine counts of inquiry can be separated into two steps. Instead, the two steps Plaintiff’s complaint. Plaintiff now appeals the district merge when the employee’s position requires him to speak on court’s order granting summary judgment to Defendants on issues that normally would be of public concern. Because the his claim for race and national origin discrimination brought plaintiff’s speech concerned the inner workings of the under 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e-2; retaliatory discrimination brought under the opposition and participation clauses of 42 U.S.C. § 2000e-3(a); as well as his claim brought under 42 U.S.C. § 1983 for violation of his The majority can point to no case where discrimination based on right to free speech under the First Amendment. For the general advocacy of minority rights has been found to violate either § 1981 or Title VII. What if the general advocacy is for a plan that fails reasons set forth below, we AFFIRM in part, REVERSE in to meet the standard of City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L.Ed.2d 854 (1989)? 42 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 3

matters in the course of employment. I do not believe this part, and REMAND the case back to the district court for case can be distinguished from Holden. An affirmative action trial. official’s job is to advocate on behalf of minorities and the majority’s holding that when an affirmative action official BACKGROUND disagrees with his employer he has a cause of action under Title VII creates a disincentive for employers in their decision A. The University and its Affirmative Action Policy to establish an affirmative action officer position. The majority attempts to distinguish Holden by stating that the As a federal contractor, the University is required to meet plaintiff was not protesting the implementation of an certain affirmative action obligations. See 41 C.F.R. § 60- affirmative action program, but rather, he was protesting 1.40; Executive Order No. 11246. These obligations consist discrimination in hiring. In reality, there is no distinction. of, among other things, maintaining and updating affirmative The plaintiff contends that he was terminated for his active action programs; analyzing the University’s workforce by race advocacy on behalf of minorities, yet, this was his job. If he and sex; analyzing areas of underutilization of women and was not performing his job to the satisfaction of his minorities; maintaining data regarding the employment of employers, the University is entitled to dismiss him. The women and minorities; and analyzing the impact of the plaintiff has presented no evidence that his advocacy went University’s employee selection process. See 41 C.F.R. § 60- beyond the scope of his employment, and I believe this is 1.40; § 60-2.11(a); § 60-2.11(b); § 60-3.4; § 60-3.15. significant. I do think that the plaintiff’s employment as a high level affirmative action officer does and should make a In 1978, the Office of Federal Contract Compliance and difference in the analysis of his claims. Because it was his Programs (“OFCCP”) investigated the University and found job to advocate on behalf of minorities I do not think he is pay disparities among African Americans and women in the entitled to protected status for his general advocacy on behalf University; the OFCCP therefore concluded that the of minorities. For this reason, I believe that the defendants University was in violation of its affirmative action duties. are entitled to summary judgment on plaintiff’s claims under See 41 C.F.R. § 60-1.26. As a result, the University and the section 1981, section 2000e-2 of Title2 VII and the opposition OFCCP entered into a Conciliation Agreement wherein the clause of section 2000e-3(a)Title VII. Because the plaintiff’s University agreed to implement procedures to prevent discrimination against women and minorities. These procedures consisted of identifying underutilized positions, creating a list of new candidates for new positions, and 2 ensuring that the list included names of qualified women and When you come to the claim that Dr. Steger violated § 1981 because of plaintiff’s general advocacy for the use of the affirmative action plan minorities. If a non-minority male applicant was selected and and disagreement over the President’s use of the waiver for particular if women and minorities did not appear on the candidate list, jobs, the plaintiff’s claim is even more murky. Plaintiff has not claimed then the employing unit at the University was required to give that the University of Cincinnati violated section 1981 or Title VII in its failure to hire any specific individuals. While he made that claim on his written reasons for the omissions. The affirmative action own behalf in the District Court, he has not appealed its dismissal. His office was to approve or disapprove the selected person after disagreement with the University related to the implementation of its a determination of whether sex or race was a factor in the affirmative action plan, a plan the University maintained even though the selection. term of the plan had expired and which was adopted without any finding or admission of discrimination. In an effort to comply with the mandates of the Conciliation The failure to hire the African-American candidate as head of the Alliance hospitals was not even covered by the affirmative action plan. Agreement regarding the University’s hiring practice, the Nor did Dr. Steger participate in it. University developed a form – known as the A-900 form or 4 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 41

A-900 process – that tracked open employment positions. section 2000e-2 claims against the University and Dr. Steger Under this process, the hiring manager of each department in his official capacity cannot survive. wishing to fill a vacant position, no matter how high or low in the organizational structure, was required to complete an A- I also am at a loss as to how the majority can sustain 900 form and submit it to the affirmative action office plaintiff’s § 1981 claim against Dr. Harrison in his individual (“AAO”). In turn, the AAO would inform the hiring manager capacity. The plaintiff has presented no evidence that Dr. whether the vacant position was underutilized; meaning Harrison influenced the University and its officials in the whether the position was one that statistically had fewer decision to relieve the plaintiff of his duties. In his brief to women and minorities employed than would be expected this court, the plaintiff does not even address the viability of given the makeup of the overall population. his § 1981 claim against Dr. Harrison. Instead, he focuses his argument on Dr. Steger’s role in his dismissal. I believe the If the position to be filled was underutilized, the hiring plaintiff chose this tactic because there were no grounds upon manager was required to advertise the open position, which to find Dr. Harrison liable for a § 1981 violation and I assemble a pool of candidates, select a candidate, and send believe that it is error for this court not to dismiss plaintiff’s the information to the AAO. If the selected candidate was not § 1981 claim against Dr. Harrison in his individual capacity. a member of the underutilized class, then the affirmative action director and the hiring manager would consider Plaintiff’s claims under § 1981 and § 2000e-2 of Title VII, whether sufficient numbers of members of the underutilized along with plaintiff’s retaliation claim under the opposition class were considered. The affirmative action director could clause of Title VII, also fail because plaintiff has failed to reject the selected candidate and require the hiring manager to establish that he is a member of a protected class. Although begin a new search. However, Dr. Steger as president of the the majority attempts to show that it has been long established University, could waive the A-900 process and allow a hiring that an advocate for a minority who has been discriminated manager to hire a non-minority candidate, despite the against is protected under Title VII and § 1981, I believe that underutilization of minorities within the particular the majority’s analysis of our prior cases is fundamentally department, and over the objection of the AAO. flawed. I agree with the majority that individuals are permitted to pursue claims of discrimination based on their Following the expiration of the Conciliation Agreement in advocacy of another person’s rights, but, in all of these cases, 1980, the University’s AAO fell into a state of disarray. In the individual is advocating upon the behalf of a specific the spring of 1988, Dr. Steger appointed the President’s individual or specific individuals whose constitutional rights Advisory Council on Race Relations and Human Decency or Title VII rights have been violated. Plaintiff’s claim is not (“PACRRHD”) and charged it with examining issues of race based on his advocacy of specific individuals, but rather, he relations at the University. The focus of the PACRRHD was claims protected class status based on his general advocacy. to “create a diverse community in which all members feel a When we extend protected class status to individuals like the sense of responsibility for the elimination of ignorance, plaintiff, we undermine the protections afforded by Title VII suspicion, prejudice and racism.” In a report submitted to Dr. and the Constitution. Plaintiff’s claim against the University Steger on August 4, 1989, the PACRRHD noted that although and its employees basically boils down to a disagreement over African Americans occupied 28% of the University’s total the implementation of an affirmative action program. This staff, they occupied the lower employment categories at the Circuit, in Holden v. Owens-Illinois, 793 F.2d 745, 751 (6th University in vastly disproportionate numbers. For example, Cir. 1986), held that an employee does not obtain protected African Americans occupied 74% of the service staff, 29% of status simply because the employee handles affirmative action 40 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 5

advocacy, the direct evidence of discrimination also must the technical staff, and 33% of the secretarial staff; however, concern advocacy. I find no direct evidence in the record African Americans occupied only 10% of the establishing that any of the defendants discriminated against executive/administrative staff and 11% of the the plaintiff based on his advocacy; therefore, the plaintiff’s professional/non-faculty staff. Based on these findings, the claim can survive only if he can establish a prima facie case PACRRHD recommended a new comprehensive affirmative of discrimination under the McDonnell Douglas-Burdine test. action initiative at the University with specific goals toward As stated in the majority opinion, the plaintiff must show that increasing the number of minorities in upper level positions. (1) he is a member of a protected class; (2) he was qualified The PACRRHD also recommended the creation of a new high for his job; (3) he suffered an adverse employment action; and level position to head the affirmative action program. The (4) he was replaced by someone outside the protected class or individual selected for this position would report directly to was treated differently than a similarly situated individual the president and have Cabinet-level status, and would be outside the protected class. See McDonnell Douglas Corp. v. responsible for “following current Affirmative Action Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d functions, as well as the development of new programs, 668 (1973). I do not believe that the plaintiff has satisfied policies and diversity initiatives to improve and enhance the either the first or fourth prong of this test. In my discussion quality of life.” In response to the PACRRHD’s of plaintiff’s retaliation claim under the opposition clause of recommendations, the Vice President of Human Resources Title VII, I address the plaintiff’s status as a member of a and Human Relations (“VPHHR”) position was created protected class. For purposes of this analysis, I will limit my wherein the individual occupying that role would be in charge dissent to the plaintiff’s failure to establish the existence of of both human resources and the affirmative action program. the fourth prong, although I believe that my analysis of plaintiff’s protected status below applies equally to these B. Plaintiff’s Role and Course of Employment at the claims. The protected class to which the plaintiff claims University membership can be classified as the class of advocates for minorities. The plaintiff has presented no evidence to In 1993, Dr. Steger recruited Plaintiff to serve as the establish either that he was replaced by someone who was not VPHHR following a national search. Plaintiff signed a three- an advocate for minorities or that other “non-advocates” who year contract and began his duties as VPHHR on August 1, were similarly situated were treated differently. The 1993. Plaintiff was the second person to occupy this role; and plaintiff’s has failed to establish a prima facie case of there was a period of time before Plaintiff was appointed that discrimination; therefore, his section 1981 claims against Dr. the position was unoccupied and the AAO was without a Steger and Dr. Harrison in their individual capacity and his permanent head. As a result, at the time Plaintiff was brought aboard, the AAO was in state of disorder and flux. There was a back log of A-900 forms that had accumulated during the give me adequate support for my position on both time the AAO was without a head, as well as large number of campuses. A-900 waivers. For example, there were approximately 300 The plaintiff does not raise any issues contending that he experienced waivers of the A-900 process from 1992 to May of 1994. discrimination based on his race or national origin and any attempt to Plaintiff expanded the AAO, and hired George Wharton as its construe his claim as anything but a claim based on his advocacy of director in September of 1994. minority rights is erroneous. Recasting the plaintiff’s claim as one of advocacy on behalf of specific individuals as the majority appears to do, rather than one of general advocacy, fails because the plaintiff presented Plaintiff was troubled by what he perceived to be the no evidence connecting his advocacy on behalf of these specific excessive number of waivers of the A-900 process, and in individuals to his discharge. 6 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 39

July of 1994, Plaintiff sent a memorandum to the Cabinet _____________________________________________ members entitled, “Is there an Affirmative Action Commitment?” In the memorandum, Plaintiff expressed his CONCURRING IN PART, DISSENTING IN PART concern about the number of waivers in the A-900 process, _____________________________________________ questioned the University’s commitment to equal employment opportunities, and warned that continued violations could1 KENNEDY, concurring in part and dissenting in part. cause the OFCCP to enforce a new conciliation agreement. While I agree with the majority’s resolution of the immunity issues and Dr. Johnson’s retaliation claim under the Throughout 1994 and 1995, Plaintiff became particularly participation clause, I dissent from the majority opinion concerned with the University’s commitment to affirmative because I disagree with the majority’s resolution of the rest of action regarding University Hospital’s association in the the plaintiff’s claims. In particular, I disagree with the “Alliance,” a private, non-profit health care management majority’s analysis of the plaintiff’s claims under Title VII corporation with a single board of directors created to manage and § 1981. I also dissent from the majority’s decision on the and control four of the major hospitals in the community. By plaintiff’s First Amendment claims. joining the Alliance, the University surrendered daily operation of University Hospital to the health care The majority holds that the plaintiff presented direct management group, although those employed there remained evidence of the defendants’ discrimination through his employees of the University until January 1, 1997. Despite testimony concerning University officials’ expressions of race his requests, Plaintiff was not allowed to play any meaningful consciousness during the hiring process. This testimony, role with respect to Alliance, even though the human resource however, does not provide direct evidence of the defendants’ counterparts from the other hospitals involved regularly discrimination against the plaintiff based on his advocacy of contributed. minority rights. 1 Because plaintiff’s claim is based on his Under the Alliance agreement, the University was required to hire a Senior Executive Officer (“SEO”) to run the 1 University Hospital’s daily operations. The SEO was to be an In his brief to this court, the plaintiff identified three issues for Alliance employee who reported directly to the President of review. His claims under Title VII, §1981, and the First Amendment were couched in terms of his advocacy upon behalf of minorities. In the Alliance; however, the University participated in the particular, his brief states the issues as follows: hiring selection for this position. An outside search firm was “2. Whether, for Mr. Johnson’s Title VII and 42 hired to facilitate the search. The search firm identified U.S.C. §1981 claims, he had a protected status because approximately 200 resumes; out of these resumes, three he advocated minority rights. candidates were selected for the final vote: a white male, an 3. Whether, for Mr. Johnson’s First Amendment retaliation claim, the importance of his advocacy of African-American male, and a white female. After minority rights outweighed UC’s interest in maintaining the operation of its affairs.” In addition, his complaint to the EEOC stated: 1 The university employs me as the Vice President for The OFCCP in fact conducted a second audit of the University Human Resources. The institution has obstructed me which was completed on May 26, 1995, and thereafter sent the University from performing my assignment as the executive a completed audit outlining nine violations. However, over the objections authorized for planning and operating human resource of Plaintiff and Wharton, Dr. Steger retained the services of an outside systems for the east and west . . . law firm to respond to the notice from the OFCCP rather than allow President Joseph Stegar tells me that I am authorized to Plaintiff the opportunity to respond to the violations. perform my executive level duties, but he also fails to 38 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 7

disagree with the district court’s conclusion that the interviewing all three candidates, Plaintiff cast his vote in University’s interest outweighed Plaintiff’s interest in favor of the African-American male based on the candidate’s speaking out on behalf of the University’s failure to comply overall experience as well as the fact that Plaintiff found him with its affirmative action policies. Even if Plaintiff’s speech to be the strongest of the three candidates. However, the delayed the University’s hiring of prospective employees, this white male was selected for the SEO position by receiving the does not rise to the level of having a detrimental impact on majority of votes by the selection committee. At a July 25, close working relationships or undermining a goal or mission 1994 meeting attended by Dr. Harrison and Plaintiff of the University. See Meyers, 934 F.2d at 730. To the following the SEO selection, it was agreed that Plaintiff contrary, Plaintiff’s speech regarding the University’s failure would direct the search for the next two executive level to comply with its A-900 process promoted or advanced the positions to become available at the University Hospital, and University’s alleged goal of employment equality for women that efforts would be made to target minorities to fill these and minorities; his speech did not undermine that goal. positions. Plaintiff sent a memorandum dated July 27, 1994, Furthermore, the district court’s grant of summary judgment to Dr. Harrison detailing Plaintiff’s understanding of the based upon its determination that there were no material outcome of the meeting. factual disputes regarding the disruptive impact of Plaintiff’s complaints upon the University’s business was improper in In August of 1995, Dr. Harrison sought a waiver of the A- any event; the contested issues of fact, based upon the 900 process to fill the position of Vice Chairman of the parties’ differing characterizations of the evidence, are very Department of Surgery for the College of Medicine. much in dispute and would be best left for determination at Specifically, Dr. Harrison requested that he be able to hire Dr. trial. See Mount Healthy City Sch. Dist. Bd. of Educ., 429 James Hurst, a former member of the College of Medicine U.S. at 287. We therefore reverse the district court’s order faculty, without going through the A-900 process because he granting summary judgment to Dr. Steger and Dr. Harrison knew and endorsed the former member’s experience and individually on this claim. abilities. Plaintiff sent a letter dated September 21, 1995, to Dr. Steger protesting Dr. Harrison’s waiver of the A-900 CONCLUSION process and questioning the University’s commitment to providing equal opportunities in employment. Despite For the above-stated reasons, we AFFIRM the grant of Plaintiff’s protestations, Dr. Steger approved the A-900 summary judgment to the University on Plaintiff’s claims waiver at Dr. Harrison’s request. brought under the 42 U.S.C. § 1981 and § 1983 on Eleventh Amendment immunity grounds; and to Dr. Steger and Dr. A few months later, in November of 1995, the University Harrison individually on Plaintiff’s claims brought under Title was negotiating with District 925 of the Service Employees VII. However, we REVERSE the grant of summary International Union (“925") and, as VPHHR, Plaintiff judgment to the University and Dr. Steger in his official participated in the negotiations. District 925 represents the capacity on Plaintiff’s claims brought under § 2000e-2, and secretarial and support staff of the University. The contract under both the opposition and participation clauses of between the University and 925 employees was up for § 2000e-3; and to Dr. Steger and Dr. Harrison on Plaintiff’s renewal, and the critical issue during the negotiations was claims brought under § 1981 and § 1983. We also tuition remission; that is, the amount of money 925 REVERSE any corresponding pendant state law claims and employees would have to reimburse the University for the REMAND the matter for trial. cost of tuition waivers granted by the University in the event the employee failed to achieve a certain minimum grade. 8 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 37

This issue was the final barrier to the University and 925 his complaints and concerns to Cabinet officials rather than reaching an agreement, and the University was prepared to the general public, is of no consequence because the subject accept the cost of a strike if 925 did not agree to the matter of Plaintiff’s complaints was an established matter of University’s terms. public concern in this circuit — “an opinion concerning the general policy of affirmative action . . . .” See id.; see also Dr. Steger met with Plaintiff and Stephanie Echols, the Chappel v. Montgomery County Fire Protection Dist. No. 1, University’s representative at the negotiations, to discuss the 131 F.3d 564, 579 (6th Cir. 1997) (“Constitutional protection status of the 925 matter. There is a dispute as to what for speech on matters of public concern is not premised on the transpired at the meeting inasmuch as Dr. Steger contends communication of the speech to the public.”). The plaintiff that the three discussed a proposal from 925, which Dr. Steger in Rankin voiced her opinion about the President in a private rejected; while Plaintiff contends that there was no proposal conversation which was later reported to her employer; rejected at the meeting. However, that aside, the parties are however, the Supreme Court found that the speech, even in agreement that it was understood that the University would though internal, was nonetheless of a public concern and risk a strike rather than comply with the 925 remission therefore protected because it involved the President. See demands. At the close of the meeting, Dr. Steger indicated Rankin, 483 U.S. at 386. The same reasoning applies to this that he had to leave to attend a dinner engagement, but that he case. could be reached at home later in the evening if developments were made in the 925 negotiations. Therefore, having found that Plaintiff’s speech was a matter of public concern, the next relevant inquiry under this claim Echols negotiated with 925 until late into the evening, concerns comparing the University’s proclaimed need to run repeatedly updating Plaintiff on her progress. According to an efficient organization against Plaintiff’s right to speak. See Echols, each time that she updated Plaintiff, he repeated Dr. Pickering, 391 U.S. at 568. “In order to justify a restriction Steger’s warning that the University would accept a strike on speech of public concern by a public employee, plaintiff’s rather than concede to tuition remission. Finally, at about speech must impair discipline by superiors, have a detrimental 11:30 p.m., Echols tentatively agreed with 925 members on impact on close working relationships, undermine a legitimate a proposal that she believed would satisfy the University and goal or mission of the employer, impede the performance of informed Plaintiff of the proposed settlement. However, the speaker’s duties, or impair harmony among co-workers.” according to Plaintiff, he informed Echols at that time that the Meyers, 934 F.2d at 730. tentative settlement to which she agreed was not in line with what the University was prepared to accept. Echols replied Here, the district court found that Plaintiff’s speech at issue that the parties had departed, and if the tentative settlement was a matter of public concern, but that the University’s was not acceptable, it could be addressed later. interest outweighed Plaintiff’s right to free speech in this context, because Plaintiff’s verbal complaints about the Due to the late hour -- about midnight by this time -- University’s failure to comply with its A-900 procedure was Plaintiff decided to wait until the morning to telephone Dr. “causing a tremendous disruption in the University’s ability Steger and inform him of the proposed settlement. Plaintiff to deliver its services.” (J.A. at 100088.) The district court telephoned Dr. Steger at his office at approximately 7:00 a.m., based its conclusion on various evidence in the record that the next day; however, Plaintiff did not speak with Dr. Steger Plaintiff had been tying up employment decisions within the because he had already left for a breakfast meeting with the University because of his protests regarding the University’s deans of the University. News of the proposed settlement failure to follow its affirmative action program. Id. We 36 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 9

contravention of city policy on affirmative action” to two apparently did not escape the news media, because Dr. Steger employees of an organization the purpose of which was to was informed of the tentative settlement during his breakfast assist minorities in competing for jobs. Id. at 727. The meeting with the deans. Dr. Steger was not pleased that plaintiff claimed that his statements on affirmative action led Plaintiff had not reached him with the latest developments, to his constructive discharge. Id. at 729. In finding that the and sent Plaintiff a letter dated November 15, 1995, plaintiff’s statements were protected under the First admonishing Plaintiff while claiming that he “was Amendment in that they addressed a matter of public concern, embarrassed this morning at a breakfast with the Deans when we noted that the case was “analogous to Rankin [v. they asked me the terms of the 925 settlement. I had to say I McPherson], not Connick [v. Myers].” Id. We then opined did not know they settled -- let alone the terms.” (J.A. at as follows: 298.) In Connick permissible employment action was taken as Because the Board of Trustees was the body to ultimately a result of an internal office dispute about a transfer, and authorize the 925 settlement, Dr. Steger requested that the speech was concerned only with internal office Plaintiff draft a summary of the settlement for the Board to policy. In Rankin the employee had no dispute with her review at its next meeting on November 28, 1995. The Board employer until she stated at work that if a second attempt reviewed the summary; however, it demanded to see the full were made on the President’s life she hoped it would be text of the agreement before they would approve it, and successful. The court held that in context the speech planned to meet again on December 18, 1995. In the addressed the employee’s dissatisfaction with the meantime, apparently at Plaintiff’s directive, the payroll President’s cuts in Medicaid, CETA and welfare benefits. department began programming its computers to adjust for The Court said that “conversation addressing the the pay increases and back pay adjustments that were policies of the President’s administration . . . [made] on reflected in the settlement. The payroll department the heels of a news bulletin regarding what is certainly a subsequently informed Dr. Steger that the payroll adjustments matter of heightened public attention: an attempt on the would be reflected on the December 5, 1995, paychecks life of the President,” is plainly a matter of public despite the Board’s lack of final approval because it was not concern. Rankin, 483 U.S. at 386, 107 S. Ct. at 2898. possible to reverse the computer adjustments at that time. The speech scrutinized in Rankin was in the form of an Accordingly, Dr. Steger told the payroll department to issue opinion, made in a private conversation later reported to the checks as adjusted. On December 18, 1995, the Board, the employee’s supervisor. unhappy with the terms of the settlement but constrained by the adjustments in the payroll system, accepted the 925 Id. The Meyers Court concluded that “speech about a settlement. politically charged issue like affirmative action — whether pro or con — should be considered a matter of public Plaintiff filed a complaint with the Equal Employment concern.” Id. at 730. Opportunity Commission (“EEOC”) on December 5, 1995, alleging race and retaliatory discrimination against the As in Meyers, Plaintiff’s speech was made known to his University. Plaintiff claimed that University officials, supervisor, Dr. Steger, and dealt with the University’s failure particularly Dr. Harrison, were discriminating against him to comply with policies relating to its affirmative action because of his race as an African American, and not allowing program. Therefore, Plaintiff’s speech was a matter of public him to fully participate in Human Resource matters in regard concern. See 934 F.2d at 730. The fact that Plaintiff directed to University Hospital. Plaintiff also alleged that he was 10 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 35

retaliated against for his protestations regarding the hiring of 147. “Whether an employee’s speech addresses a matter of the SEO. On or around December 20, 1995, Dr. Steger public concern must be determined by the content, form, and informed his Cabinet that Plaintiff had filed a discrimination context of a given statement, as revealed by the whole complaint with the EEOC. Plaintiff met with Dr. Steger on record.” Id. at 147-48. December 20, 1995, in the course of a regularly scheduled meeting, and requested that Dr. Steger provide him with If Plaintiff’s speech in this regard is found to be a matter of information regarding what role the Human Resource public concern and thus protected, the next inquiry is whether department was to play in managing the personnel affiliated Plaintiff’s free speech interests outweighed Defendants’ with the Alliance, as well as information regarding the interest in regulating his speech under the well known Board’s criticisms of Plaintiff’s handling of the 925 Pickering balancing test. See Pickering, 391 U.S. at 568. If negotiations. Dr. Steger agreed to provide Plaintiff with this Plaintiff’s interests in speaking outweighed that of information in writing within a few weeks. Defendants’ interests, then Plaintiff’s First Amendment rights have been violated. See Dambrot v. Central Mich. Univ., 55 On January 9, 1996, Dr. Steger sent Plaintiff a F.3d 1177, 1186 (6th Cir. 1995). If the First Amendment memorandum outlining what Dr. Stegar found to be violation was a substantial or motivating factor in deficiencies in Plaintiff’s performance as VPHHR, including Defendants’ action against Plaintiff, Defendants may present Plaintiff’s handling of the 925 negotiations, as well as evidence that they would have terminated Plaintiff in the complaints that Dr. Steger had allegedly received from other absence of his protected conduct, which is a question of fact departments regarding the length of time it took Plaintiff to for the jury to decide. See Mt. Healthy City Sch. Dist. Bd. of process an A-900 form. Dr. Steger concluded the letter by Educ. v. Doyle, 429 U.S. 274, 287 (1977). indicating that he “questioned [Plaintiff’s] continued ability to occupy a leadership position in this University.” In In this case, the district court found that Plaintiff’s speech response, Plaintiff sent Dr. Steger a memorandum dated on Defendants’ noncompliance with its affirmative action January 16, 1996, wherein Plaintiff disputed Dr. Steger’s program to be a matter of public concern. However, the court criticisms. Plaintiff also indicated that he was surprised by found that the University’s interests maintaining its hiring Dr. Steger’s “attack” on his performance since he was hearing process without disruption outweighed Plaintiff’s right to free about Dr. Steger’s dissatisfaction for the first time. In fact, speech. Although we agree with the district court that the record indicates that Plaintiff received two written Plaintiff’s speech regarding the University’s failure to comply performance evaluations from Dr. Steger; one in July of 1994, with the A-900 process was a matter of public concern, we and the other about a year later. Although the second disagree that the University’s purported interests outweigh evaluation was not as complimentary as the first, Dr. Steger Plaintiff’s right to free speech. gave Plaintiff high marks for his leadership and vision for the future in both evaluations. In Meyers v. City of Cincinnati, this Court held that “[j]ust as an opinion concerning the general policy of affirmative The day after receiving Plaintiff’s memorandum, January action would be a matter of public concern, so too is speech 17, 1996, Dr. Steger sent Plaintiff a termination notice and concerning methods of implementing affirmative action.” removed Plaintiff from his duties. Plaintiff filed the instant 934 F.2d 726, 730 (6th Cir. 1991), modified on other grounds, suit on July 25, 1996. 979 F.2d 1154 (6th Cir. 1992). The plaintiff in Meyers held the title of “assistant fire chief in charge of personnel,” and he allegedly made statements which were “in direct 34 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 11

Considering this evidence in the light most favorable to DISCUSSION Plaintiff, a reasonable jury could find that Plaintiff was retaliated against for filing his complaint and charge with the I. ELEVENTH AMENDMENT IMMUNITY DEFENSE EEOC. & BARRED CLAIMS As with Plaintiff’s claim brought under the opposition We first address Defendants’ Eleventh Amendment clause, Plaintiff has created an issue of fact for the jury as to immunity defense because this defense raises a question of whether Defendants’ proffered reasons for Plaintiff’s federal jurisdiction. See Wilson-Jones v. Caviness, 99 F.3d discharge were merely pretextual by suggesting that 203, 206 (6th Cir. 1996) (“As an Article III restriction, state Defendants’ justifications possibly have no basis in fact or are immunity is jurisdictional in the same sense as the complete insufficient to explain his discharge, and are not the true diversity requirement, . . . or the well-pleaded complaint reasons for Plaintiff’s termination. We therefore reverse the rule.”) (citations omitted). Regarding Plaintiff’s claims district court’s grant of summary judgment to the University brought against Defendants pursuant to 42 U.S.C. § 1981 and and Dr. Steger in his official capacity on Plaintiff’s claim § 1983, the University, as an arm of the State, is immune from brought under the participation clause of Title VII. suit under the Eleventh Amendment because it is well-settled that a plaintiff is precluded from directly suing a State in IV. SECTION 1983 CLAIM FOR VIOLATION OF federal court on these claims. See Hafford v. Seidner, 183 FIRST AMENDMENT RIGHTS F.3d 506, 512 (6th Cir. 1999) (recognizing that claims against a State under § 1981 are barred by the Eleventh Amendment); In Count VI of his amended complaint, Plaintiff brought a see also Quern v. Jordan, 440 U.S. 332, 350 (1979) (holding claim under 42 U.S.C. § 1983, alleging that Defendants that § 1983 does not override a State’s Eleventh Amendment retaliated against him for voicing his concerns about immunity). However, Plaintiff’s § 1981 and § 1983 claims Defendant’s failure to properly implement and comply with against Dr. Steger and Dr. Harrison in their individual the A-900 process -- Defendant’s affirmative action program capacities are not barred by the Eleventh Amendment. -- in violation of Plaintiff’s First Amendment right to free speech. Plaintiff’s claims brought against Dr. Steger and Dr. Harrison in their individual capacities under Title VII cannot As a public employee, to establish a § 1983 claim that go forward, however, because such claims can only proceed Defendants denied Plaintiff his right to free speech under the against individuals who otherwise qualify as employers, First Amendment, Plaintiff had to prove that 1) the action was which Plaintiff does not allege.2 See Wathen v. General taken against him for speech that was directed toward an issue of public concern, and that 2) his interest in speaking as he did outweighed Defendants’ interest in regulating his speech. 2 We note that the Ohio Supreme Court has recently indicated “that See Connick v. Myers, 461 U.S. 138, 147 (1983); Pickering v. for purposes of R. C. Chapter 4112, a supervisor/manager may be held Board of Educ., 391 U.S. 563, 568 (1968).The initial inquiry jointly and/or severally liable with her/his employer for discriminatory into determining whether a public employee’s speech is a conduct of the supervisor/manager in violation of R. C. 4112.” See matter of public concern is a question of law for the court to Genaro v. Central Transport, Inc., 703 N.E.2d 782, 787-88 (Ohio 1999). decide. Rankin v. McPherson, 483 U.S. 378, 386 n.9 (1987). Therefore, upon remand, Plaintiff’s claim of race discrimination and Absent unusual circumstances, a public employee’s speech retaliation brought against Dr. Steger individually under Ohio Rev. Code § 4112.99 may go forward. Because the Ohio court did not establish that dealing with “matters only of personal interest” is not a non-supervisor may be individually liable under Chapter 4112, the same afforded constitutional protection. See Connick, 461 U.S. at does not hold true for Plaintiff’s Chapter 4112 claim brought against Dr. 12 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 33

Electric Co., 115 F.3d 400, 405 (6th Cir. 1997) (“[A]n discrimination action. See Avery Dennison Corp., 104 F.3d individual employee/supervisor who does not otherwise at 861; Zanders v. National R.R. Passenger Corp., 898 F.2d qualify as an ‘employer,’ may not be held personally liable 1127, 1135 (6th Cir. 1990). Although temporal proximity under Title VII.”); see also Morris v. Oldham County Fiscal alone does not support an inference of retaliatory Court, 201 F.3d 784, 788 n.1 (6th Cir. 2000) (recognizing discrimination in the absence of other evidence, closeness in Wathen’s holding). Plaintiff’s Title VII claims are time between the filing with the EEOC and the adverse permissible against the University in federal court employment action is relevant and may evince the employer’s notwithstanding the Eleventh3 Amendment and against Dr. intent. See Cooper v. City of North Olmstead, 795 F.2d 1265, Steger in his official capacity. See Alden v. Maine, 527 U.S. 1272-73 (6th Cir. 1986) (“The mere fact that [the plaintiff] 706, 119 S. Ct. 2240, 2266-68 (1999); Fitzpatrick v. Bitzer, was discharged four months after filing a discrimination claim 427 U.S. 445, 456 (1976) (finding that Congress abrogated is insufficient to support an inference of retaliation.”). In the States’ sovereign immunity by enacting Title VII under short, in order to meet the final prong of his prima facie case, the Enforcement Clause, § 5, of the Fourteenth Amendment). Plaintiff must “put forth some evidence to deduce a causal connection between the retaliatory action and the protected In summary, Plaintiff is allowed to proceed with his claims activity [which requires] the court to draw reasonable brought under Title VII against the University and Dr. Steger inferences from that evidence, providing it is credible.” See in his official capacity; and he is allowed to proceed with his Avery Dennison Corp., 104 F.3d at 861. We believe that claims brought under § 1981 and § 1983 against Dr. Steger Plaintiff has met his burden of showing a temporal proximity and Dr. Harrison in their individual capacities.4 These claims between his filing of his EEOC complaint and his will be addressed in turn as follows. termination, coupled with other evidence, sufficient to establish causation. For example, Plaintiff has shown that his first two Harrison individually. See Summerville v. Ross/Abbott Labs., No. 98- performance evaluations had been strong prior to his filing of 3517, 1999 WL 623786, at **4 (6th Cir. Aug. 10, 1999). Because the EEOC charge. Plaintiff has also shown that the Plaintiff did not sue Dr. Harrison in his official capacity, Dr. Harrison is University hospital resisted his efforts, particularly with relieved of liability under Title VII and Ohio Rev. Code § 4112. respect to the hiring of the SEO and the Vice-Chairman of the 3 Department of Surgery, and that he was excluded from a Plaintiff sued Dr. Steger in his individual capacity with respect to retreat where many other human resource administrators met damages, and in his official capacity with respect to Plaintiff’s claim for equitable injunctive relief. However, because Plaintiff now has a new job to discuss the hospital merger. Furthermore, the same day with similar pay and benefits, the equitable relief may no longer remain that Dr. Steger informed the Cabinet of Plaintiff’s filing of his at issue, and Plaintiff now seeks money damages. Furthermore, Dr. EEOC complaint and that they may have to defend against it, Steger claims that he has no authority to grant Plaintiff equitable relief Plaintiff requested a performance evaluation from Dr. Steger and that he should be dismissed from suit. We leave these issues for the and only in response to this request did Dr. Steger then district court to resolve on remand. scrutinize Plaintiff’s performance and provide him with a 4 negative evaluation. On January 16, 1996, Plaintiff Our holdings as to Plaintiff’s claims brought under Title VII apply responded to Dr. Steger’s evaluation by sending Dr. Steger an with equal force to his claims brought under Ohio Rev. Code § 4112. See Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm., 575 N.E.2d evaluation accusing him of, among other things, retaliating 1164,1167 (Ohio 1991) (“[W]e have determined that federal case law against Plaintiff for filing and EEOC claim. The next day, Dr. interpreting Title VII . . . is generally applicable to cases involving alleged Steger terminated Plaintiff from his duties at the University. violations of R. C. Chapter 4112.”); see also supra note 2. 32 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 13

advocacy right as an affirmative action representative and his II. STANDARD OF REVIEW affiliation with PACRRHD. Thus, Plaintiff could have reasonably believed that he was engaging in protected activity We review a grant of summary judgment de novo. See when he filed his EEOC complaint. Our holding in this Dinsmore Instrument Co. v. Bomardier, Inc., 199 F.3d 318, regard represents the first in this Circuit dealing with general 320 (6th Cir. 1999). Summary judgment is appropriate where advocacy rights under Title VII and § 1981 for a cabinet-level there exists no genuine issue of material fact and the moving affirmative action/human resource vice-president. party is entitled to summary judgment as matter of law. Fed. R. Civ. P. 56(c). As the moving parties, Defendants in this Accordingly, having established that Plaintiff was engaged case bear the burden of showing the absence of a genuine in a protected activity when he filed his complaint with the issue of material fact as to at least one essential element on EEOC, Plaintiff has satisfied the first step of the inquiry into each of Plaintiff’s claims. See Celotex Corp. v. Catrett, 477 his prima facie case of retaliation. In light of the following U.S. 317, 324 (1986). Plaintiff, as the non-moving party, evidence, which we view in the light most favorable to must then present sufficient evidence from which a jury could Plaintiff, we believe that he has met the next two parts of his reasonably find for him. See Anderson v. Liberty Lobby, Inc., prima facie case. On December 5,1995, Plaintiff filed a 477 U.S. 242, 252 (1986). This test requires the Court to complaint with the EEOC, alleging discrimination on the determine “whether the evidence presents sufficient basis of race and advocacy of minority and women’s rights. disagreement to require submission to a jury or whether it is On December 20,1995, Dr. Steger announced to the Cabinet so one-sided that one party must prevail as a mater of law.” that Plaintiff had filed the EEOC charge and the Defendants Id. at 251-52. In making this determination, we accept all of would have to defend themselves against the charges. That Plaintiff’s evidence as true and draw reasonable inferences in same day, Dr. Steger promised to deliver a letter to Plaintiff his favor. See National Enters., Inc. v. Smith, 114 F.3d 561, that outlined his standing with the University. On January 9, 563 (6th Cir. 1997). 1996, Dr. Steger sent Plaintiff a memorandum that enumerated several problems with Plaintiff’s performance; III. SECTION 1981 AND TITLE VII CLAIMS then, on January 17, 1996, Plaintiff received his termination notice. As such, in addition to establishing that he engaged in A. Section 1981 and Section 2000e-2: Race and a protected activity under Title VII by filing his EEOC National Origin Discrimination complaint, Plaintiff also established that his filing was made known to the University by Dr. Steger’s announcement at the In Count I of his complaint, Plaintiff alleges that Cabinet meeting, and that Plaintiff suffered an adverse Defendants discriminated against him on the basis of race and employment decision. national origin in violation of Title VII, 42 U.S.C. § 2000e-2. Specifically, Plaintiff alleges that Defendants discriminated In order to meet the final step of his prima facie case, against him because of his efforts to insure that the University Plaintiff must establish a causal link between his filing of the complied with its affirmative action policies, and because of EEOC claim and his termination. A causal link may be his advocacy on behalf of women and minorities. In Count shown through knowledge combined with closeness in time IV of his complaint, Plaintiff alleges that Defendants violated that creates an inference of causation. In order make such a his right to be free from discrimination and retaliation in the showing, the plaintiff must produce sufficient evidence for a making and enforcement of contracts on the basis of race, and reviewing court to infer that the employer would not have for his promotion of minorities and women, in violation of 42 taken the adverse action had the plaintiff not filed a U.S.C. § 1981. 14 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 31

A plaintiff may establish a claim of discrimination either by opposition clause, the district court found that Plaintiff did introducing direct evidence of discrimination, or by proving not hold a good faith belief that he was engaging in protected circumstantial evidence which would support an inference of activity when he filed his EEOC complaint, and that discrimination. See Kline v. Tennessee Valley Auth., 128 F.3d Plaintiff’s claim on this issue thus failed as a matter of law. 337, 348 (6th Cir. 1997). “The direct evidence and the The district court reasoned that Plaintiff filed his claim with circumstantial evidence paths are mutually exclusive; a the EEOC as a protective measure to insure the security of his plaintiff need only prove one or the other, not both.” Id. job – because he was aware that Dr. Steger was not happy Under the direct evidence approach, once the plaintiff with the manner in which Plaintiff handled the 925 introduces evidence that the employer terminated him because negotiations – and not because he reasonably believed that he of his race or other protected status, the burden of persuasion was being discriminated against. Once again, we disagree shifts to the employer to prove that it would have terminated with the district court. the plaintiff even had it not been motivated by discrimination. See Manzur v. Diamond Shamrock Chemicals Co., 29 F.3d In reaching its erroneous conclusion, the district court failed 1078, 1081 (6th Cir. 1994) (citing Price Waterhouse v. to liberally construe Plaintiff’s participation clause claim and Hopkins, 490 U.S. 228, 244-45 (1989)). instead improperly resolved it as an issue of fact; specifically, the district court improperly determined Plaintiff’s motive and Under the circumstantial evidence approach, the familiar good faith in filing the charge. The district court’s conclusion McDonnell Douglas-Burdine triparte test is employed. See is contrary to our decision in Booker: McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as later clarified by, Texas Dep’t of Community Affairs v. The “exceptionally broad protections” of the Burdine, 450 U.S. 248 (1981). This paradigm requires the participation clause extends to persons who have plaintiff to establish a prima facie case of discrimination. See “participated in any manner” in Title VII proceedings. McDonnell Douglas, 411 U.S. at 802. To establish a prima Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, facie case of discrimination, a plaintiff must show that 1) he 1006 (5th Cir. 1969). Protection is not lost if the is a member of a protected class; 2) he was qualified for his employee is wrong on the merits of the charge, Womack job and performed it satisfactorily; 3) despite his v. Munson, 619 F.2d 1292, 1298 (8th Cir. 1980), cert. qualifications and performance, he suffered an adverse denied, 450 U.S. 979, 101 S. Ct. 1513, 67 L. Ed. 2d 814 employment action; and 4) that he was replaced by a person (1981), nor is protection lost if the contents of the charge outside the protected class or was treated less favorably than5 are malicious or defamatory as well as wrong. Pettway, a similarly situated individual outside his protected class. 411 F.2d at 1007. Thus, once activity in question is See id.; Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. found to be within the scope of the participation clause, 1992). If the plaintiff is able to do so, a mandatory the employee is generally protected from retaliation. presumption of discrimination is created and the burden shifts to the defendant to “articulate some legitimate, Booker, 879 F.2d at 1312. nondiscriminatory reason for the employee’s rejection.” Id. Even if the district court had some basis for viewing Plaintiff’s EEOC complaint as Plaintiff’s way of protecting 5 himself, this does not necessarily imply that Plaintiff did not The elements of prima facie case as well as the allocations of the believe that he suffered retaliation for his advocacy prior to burden of proof are the same for employment claims stemming from Title VII and § 1981. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 the 925 negotiations. Plaintiff could have reasonably believed (1993). that he had a viable discrimination claim on the basis of his 30 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 15

opposition clause through his claims that he opposed If the defendant carries this burden, then the plaintiff must Defendant’s violations of Title VII, that Defendant knew of prove that the proffered reason was actually a pretext to hide Plaintiff’s opposition, and that Plaintiff’s opposition was unlawful discrimination. Id. The plaintiff may establish that causally related to his termination. See Walborn v. Erie the proffered reason was a mere pretext by showing that 1) the County Care Facility, 150 F.3d 584, 588-89 (6th Cir. 1998). stated reasons had no basis in fact; 2) the stated reasons were not the actual reasons; and 3) that the stated reasons were To fully dispose of the remaining inquires under the insufficient to explain the defendant’s action. See Wheeler v. McDonnell Douglas framework, we must also determine McKinley Enters., 937 F.2d 1158, 1162 (6th Cir. 1991). “A whether Defendants offered a legitimate, nondiscriminatory reason cannot be proved to be ‘a pretext for discrimination’ reason for Plaintiff’s dismissal and whether Plaintiff can show unless it is shown both that the reason was false, and that that the reasons were a mere pretext for retaliatory discrimination was the real reason.” St. Mary’s Honor Center discrimination. Defendants offered the reasons outlined in v. Hicks, 509 U.S. 502, 515 (1993). Dr. Steger’s memorandum sent to Plaintiff on January 9, 1996, wherein Dr. Steger evaluated Plaintiff’s performance, Here, the district court found that Plaintiff’s claim failed as a non-exhaustive list of reasons for Plaintiff’s termination; under either the direct or circumstantial evidentiary pathways however, Defendants contend that the primary reasons that because Plaintiff failed to show that he was a member of a Plaintiff was terminated were his handling of the 925 protected group. The district court held that Plaintiff’s claims negotiations and his overall poor administration of his failed as a matter of law because Plaintiff “postur[ed] his department. In response, Plaintiff offered deposition protected status, not as a member of a racial minority, but testimony which countered all of Defendants’ alleged reasons rather as a person who advocates on behalf of women and for Plaintiff’s discharge, as well as evidence that other minorities.” The district court also held that Plaintiff’s claims employees feared cooperating with the investigation into failed on these counts because as a high-level affirmative Plaintiff’s termination because they anticipated reprisals. action official whose job responsibilities include advocating minority rights, Plaintiff did not engage in protected activity After careful review of the record, we hold that Plaintiff has when he engaged in such advocacy. In other words, the created an issue of fact for the jury as to whether Defendants’ district court held that Plaintiff’s claims fell prey to summary proffered reasons for Plaintiff’s discharge were merely judgment because Plaintiff could not claim protected status pretextual by suggesting that Defendants’ justifications under § 1981 or § 2000e-2(a) only for his advocacy of women possibly have no basis in fact or are insufficient to explain his and minorities. We disagree. This holding is based on an discharge, and are not the true reasons for Plaintiff’s unmitigated assumption: that for a high-level affirmative termination. We therefore reverse the district court’s grant of action official to have standing to sue under § 2002e-2(a) or summary judgment to the University and Dr. Steger in his § 1981, it is necessary that the affirmative action official be official capacity on Plaintiff’s claim brought under the black – or of some other recognized protected group – and opposition clause of Title VII. that he allege discrimination against himself because of his membership in a recognized protected group. This 2. The Participation Clause assumption is contrary to express Congressional intent behind the enactment of Title VII and § 1981, as well as binding case To establish a claim of retaliation under the participation law. clause, Plaintiff must make a prima facie case by showing that Defendants discharged him because he filed a claim with the EEOC. As with Plaintiff’s claim brought under the 16 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 29

Section 2000e-2(a) of Title VII provides in relevant part as manner. Furthermore, in a letter dated September 21, 1995, follows: sent by Plaintiff to Dr. Steger regarding Defendant’s desire to waive advertising for the Vice-Chairman position, Plaintiff It shall be an unlawful employment practice for an complained that “the apparent underutilization of minorities employer – and women at the University Hospital and Medical College demonstrates the lack of commitment or intent to create an (1) to fail or refuse to hire or to discharge any equal playing field for qualified candidates, or the individual, or otherwise to discriminate against any development of a mentorship program which would support individual with respect to his compensation, terms, a safe learning environment for non-whites.” Unlike Booker conditions, or privileges of employment, because of such v. Brown & Williamson Tobacco Co. Inc., where the plaintiff individual’s race, color, religion, sex, or national origin was contesting a single decision made by his employer in a .... letter which he sent to his employer’s human resource department, Plaintiff in this case was opposing Defendant’s 42 U.S.C. § 2000e-2(a) (1994). Section 1981 provides in discriminatory hiring conduct as a whole. See 879 F.2d at pertinent part that all persons shall have the same right “to 1312-13 (recognizing that the lawfulness of the employment make and enforce contracts,” which thereby “includes the practice must be broadly construed, so that the person making, performance, modification, and termination of opposing an apparently discriminatory practice does not bear contracts, and the enjoyment of all benefits, privileges, terms, the risk that practice is in fact lawful); see also supra note 7. and conditions of the contractual relationship.” 42 U.S.C. One example of Defendants’ discriminatory hiring practice § 1981 (1994). which Plaintiff opposed was Defendants’ decision not to advertise for the Vice-Chairman position. It is an established principle that Congress’ primary concern in enacting the prohibition against racial discrimination in Accordingly, having established that he opposed conduct Title VII of the Civil Rights Act of 1964 was the plight of the which he reasonably believed to be unlawful, and that African American in our economic society. See United Steel Defendant was aware of Plaintiff’s opposition, Plaintiff also Workers of Am. v. Kaiser Aluminum & Chemical Co., 443 provided evidence to show that his opposition was causally U.S. 193, 201 (1979) (citing 110 Cong. Rec. 6548 (1964) related to his discharge. For example, Plaintiff’s complaints (remarks of Sen. Humphrey) (stating that Title VII was led to a reply memoranda from Dr. Steger wherein he “triggered by a Nation’s concern over centuries of racial criticized Plaintiff’s character and performance, and injustice and intended to improve the lot of those who had approximately one month after Plaintiff filed his charge of ‘been excluded from the American dream for so long’”). It is discrimination with the EEOC, Dr. Steger informed Plaintiff also well-established that affirmative action programs, which that he was being immediately removed from his position at were born out of Title VII legislation, are an accepted means the University. See, e.g., EEOC v. Avery Dennision Corp., of correcting past and preventing future race discrimination in 104 F.3d 858, 861 (6th Cir. 1997); Moon v. Transport the workforce both in the public and private sector. See id. at Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987); see also 204. Furthermore, the Supreme Court has long recognized discussion infra Part III.B.2. discussing the causal connection that § 1981, originally enacted as part of the Civil Rights Act between Plaintiff’s filing of his EEOC complaint and his of 1866, was intended to uproot the institution of slavery and termination in reference to his claim brought under the to eradicate all of its badges, incidents, and vestiges. See participation clause. Thus, Plaintiff has demonstrated a prima Jones v. Mayer, 392 U.S. 409, 422-37 (1968) (finding that facie case of retaliatory discrimination under Title VII’s based upon the legislative history of the Civil Rights Act of 28 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 17

by anyone and it may be made to a co-worker, newspaper 1866, the broad language of the Act was not “a mere slip of reporter, or anyone else about alleged discrimination against the legislative pen”). oneself or others; the alleged discriminatory acts need not be actually illegal in order for the opposition clause to apply; and Recently, in Tetro v. Popham, this Court recognized Title the person claiming retaliation need not be the person VII’s broad reach, and held as a matter of first impression in engaging in the opposing conduct. See EEOC Compliance this Circuit that “Title VII [was designed] to protect Manual (CCH) ¶ 8006; see also See Booker, 879 F.2d at individuals who are the victims of discriminatory animus 1312-13 (holding that “[a] person opposing an apparently towards third persons with whom the individuals associate.” discriminatory practice does not bear the entire risk that it is See 173 F.3d 988, 994 (6th Cir. 1999). Relying upon the in fact lawful; he or she must only have a good faith belief Eleventh Circuit’s decision in Par v. Woodmen of the World that the practice is unlawful”); Keys v. U.S. Welding, Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986), where it Fabricating & Mfg., Inc., No. CV91-0113, 1992 WL 218302, was held that a white individual had standing and had stated at *5 (N.D. Ohio Aug. 26, 1992) (noting that “[u]nder a viable cause of action under Title VII for discrimination § 704(a) of Title VII, [the plaintiff] needed only a ‘good faith based upon an interracial marriage, the Tetro court found that belief’ that the company practice about which he was a white employee had standing and had stated a viable cause complaining violated Title VII; it is irrelevant whether the of action against his former employer under Title VII where allegations are ultimately determined to violate Title VII”). the white employee was discharged because his child was biracial. See Tetro, 173 F.3d at 994. The Court reasoned that Therefore, it logically follows that the district court’s “[a] white employee who is discharged because his child is conclusion, that as a high-level affirmative action official biracial is discriminated against on the basis of his race, even Plaintiff could not claim protected status under the opposition though the root animus for the discrimination is a prejudice clause for his advocacy on behalf of women and minorities, against the biracial child.” Id. The Court based its reasoning runs counter to the broad approach used when considering a on Title VII’s broad remedial purpose and the fact that the claim for retaliation under this clause, as well the spirit and statute is worded such that it “simply prohibits discrimination purpose behind Title VII as a broad remedial measure. By ‘because of such individual’s race’[;] [t]here is no mention of extending the scope of Holden, the district court allows for an the words ‘directly’ or ‘indirectly’ in the statute.” Id. at 995. employer to retaliate against the person best able to oppose Thus, the Court went on to hold that Title VII protects the employer’s discriminatory practices — the “high-level individuals who are the victims of invidious discrimination affirmative action official” — without fear of reprisal under towards third persons with whom the individual associates. Title VII. Indeed, the individual who has contracted to Id. at 994. Simply put, this Court has now spoken that in advocate on behalf of women and minorities has not thereby order to state a cognizable claim under Title VII, the plaintiff contracted to be retaliated against for his advocacy. himself need not be a member of a recognized protected class; he need only allege that he was discriminated on the basis of In addition, the actions taken by Plaintiff in response to his association with a member of a recognized protected class. hiring decisions which he felt were discriminatory and not in See id.; see also Troy v. Suburban Management Corp., No. line with the A-900 process were sufficient to constitute 89-1282, 1990 WL 97490, at **5 (6th Cir. July 13, 1990); opposition under Title VII. For example, Plaintiff sent letters Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d to Dr. Steger voicing his objections to the hiring of Mr. Cohen 581, 589 (5th Cir. 1998) (finding as a matter of first and the Vice-Chairman of the Department of Surgery on the impression that Title VII proscribes discrimination in grounds that these individuals were hired in a discriminatory employment against a woman for her relationship with a 18 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 27

black man), vacated and reinstated in part en banc, 182 F.3d against employer retaliation for opposing any practice that the 333 (5th Cir. 1999). employee reasonably believes to be a violation of Title VII. The Equal Employment Opportunity Commission (“EEOC”) Similarly, in Winston v. Lear Siegler, Inc., 558 F.2d 1266, has identified a number of examples of “opposing” conduct 1270 (6th Cir. 1997), this Court addressed as a matter of first which is protected by Title VII, including complaining to impression, “the issue of whether or not the white plaintiff in anyone (management, unions, other employees, or this action has standing to sue his former employer under newspapers) about allegedly unlawful practices; refusing to § 1981 for discharging him in alleged retaliation for plaintiff’s obey an order because the worker thinks it is unlawful under protesting the alleged discriminatory firing of a black co- Title VII; and opposing unlawful acts by persons other than worker . . . .” In holding that the white plaintiff did in fact the employer — e.g., former employers, union, and co- have standing to sue under such circumstances, the Court workers. EEOC Compliance Manual, (CCH) ¶ 8006.8 The noted that although the white plaintiff “was not fired because EEOC has qualified the scope of the opposition clause by of his race, it was a racial situation in which he became noting that the manner of opposition must be reasonable, and involved that resulted in his discharge from his employment, that the opposition be based on “a reasonable and good faith id. at 1268, and that Congress’ intent behind the enactment of belief that the opposed practices were unlawful.” Id. In other § 1981 – to eradicate the badges and incidents of slavery – words, a violation of Title VII’s retaliation provision can be were best served by such a holding. Id. at 1270; see Alizadeh found whether or not the challenged practice ultimately is v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986) found to be unlawful. Id. Moreover, the person claiming (“§ 1981 provides a cause of action to a white spouse who retaliation need not be the person who engaged in the alleges that he was discriminated against in employment opposition, such that “Title VII . . . prohibit[s] retaliation because of his marriage to a nonwhite.”) against someone so closely related to or associated with the person exercising his or her statutory rights that it would Therefore, based upon this well-settled state of the law, it discourage that person from pursuing those rights.” Id. is clear that Plaintiff need not have alleged discrimination based upon his race as an African American in order to satisfy In short, the only qualification that is placed upon an the protected status requirement of his claims. Indeed, in employee’s invocation of protection from retaliation under light of this Court’s holding in Tetro and Winston, the fact Title VII’s opposition clause is that the manner of his that Plaintiff has not alleged discrimination because of his opposition must be reasonable. Of critical import here is the race is of no moment inasmuch as it was a racial situation in fact that there is no qualification on who the individual doing which Plaintiff became involved – Plaintiff’s advocacy on the complaining may be or on the party to whom the behalf of women and minorities in relation to Defendant’s complaint is made known — i.e., the complaint may be made alleged discriminatory hiring practices – that resulted in Plaintiff’s discharge from employment. See Tetro, 173 F.3d at 994-95; Winston, 558 F.2d at 1268; see also Parr, 791 F.2d 8 at 892 (holding that “[w]here a plaintiff claims discrimination Pursuant to the Supreme Court’s directive, the EEOC’s [in a Title VII action] based upon an interracial marriage or interpretation of Title VII is to be given “great deference” by the courts. association, he alleges, by definition, that he has been See Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971); see also Tetro, 173 F.3d at 994 (relying upon the EEOC’s interpretation of Title VII in discriminated against because of his race”). Although support of the Court’s holding); Ladd v. Sertoma Handicapped obviously not anticipated by the district court’s flawed Opportunity Program, Inc., 917 F. Supp. 766, 767 (N.D. Okla. 1995) reasoning, it is clear that a Caucasian high-level affirmative (finding that “[a]lthough not binding on this Court, the EEOC’s position on a subject squarely within its field of expertise is significant”). 26 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 19

engaged in protected activity in reference to either claim. We action official could bring a claim under § 1981 and § 2000e- disagree, and will address each of Plaintiff’s claims in turn. 2(a) for discrimination based upon his advocacy on behalf of minorities because the discrimination would be “because of 1. The Opposition Clause such individual’s race,” where the race of the minorities for which he was advocating would be “imputed” if you will to In conjunction with his allegations that his termination was the Caucasian high-level affirmative action official. See discrimination for his advocacy on behalf of women and Tetro, 173 F.3d at 995. minorities, Plaintiff similarly contends that the University retaliated against him for his advocacy efforts in opposition Furthermore, Plaintiff’s efforts to advocate for the A-900 to Defendants’ alleged unlawful employment practices. The process in the face of Defendants’ alleged discriminatory district court found that Plaintiff’s claim failed at the practice is clearly the type of conduct protected by § 1981 and inception because, as an affirmative action official, Plaintiff Title VII so as to provide Plaintiff standing. For example, in could not have reasonably believed that the conduct he was Sullivan v. Little Hunting Park, Inc., a case “which involve[d] opposing was protected activity. Relying upon Holden v. an alleged discrimination against a Negro family in the use of Owens-Illinois, 793 F.2d 745, 748-49 (6th Cir. 1986), the certain community facilities,” the Supreme Court found that district court reasoned that because attempts to implement an a Caucasian homeowner had standing to sue under 42 U.S.C. affirmative action program that complies with Executive § 1982 when he was expelled from a corporation organized to Order 11246 are not protected by Title VII, and because operate a community park facility for his “advocacy” on Plaintiff is presumed to know the state of the law, it follows behalf of allowing an African-American male and his family that Plaintiff could not have reasonably believed that he was to participate in the park facilities. See 396 U.S. 229, 231-37 opposing conduct that is protected under Title VII, and that (1969). Specifically, in Sullivan, the Court was faced with the his claim brought under this clause therefore failed. We find following facts: the district court’s application and extension of Holden to the facts of this case contrary to Title VII’s intent. Little Hunting Park, Inc., is a Virginia nonstock corporation organized to operate a community park and As accurately argued by Plaintiff, the scope of Holden playground facilities for the benefit of residents in an extends only to an employee who protests the implementation area of Fairfax County, Virginia. A membership share of the affirmative action program; because Plaintiff protested entitles all persons in the immediate family of the discrimination that occurred in the hiring process, which was shareholder to use the corporation’s recreation facilities. contrary to law as well as the affirmative action program, his Under the bylaws a person owning a membership share case falls beyond Holden’s reach. To hold otherwise would is entitled when he rents his home to assign the share to improperly expand the scope of Holden to include not only his tenant, subject to approval of the board of directors. the employee who protests an employer’s failure to implement Paul E. Sullivan and his family owned a house in this an affirmative action program under Title VII, but also the area and lived in it. Later he bought another house in the employee who opposes discrimination that occurs in the area and leased the first one to T. R. Freeman, Jr., an hiring process the likes of which the affirmative action employee of the U.S. Department of Agriculture; and program was designed to correct and prevent. assigned his membership to Freeman. The board refused to approve the assignment because Freeman was a Negro. Furthermore, the fact that Plaintiff may have had a Sullivan protested that action and was notified that he contractual duty to voice such concerns is of no consequence would be expelled from the corporation by the board. A to his claim. Under Title VII, an employee is protected 20 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 25

hearing was accorded and he was expelled, the board 42 U.S.C. § 2000e-3(a) (1994). Thus, this section prohibits tendering him cash for his two shares. an employer from retaliating against an employee who has “opposed” any practice by the employer made unlawful under Id. at 234-35. When Sullivan and Freeman sued Little Park Title VII; and prohibits an employer from retaliating against Hunting, Inc. under § 1981 and § 1982, the trial court denied an employee who has “participated” in any manner in an relief to each petitioner. Id. investigation under Title VII. See Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. In reversing the trial court’s decision, the Supreme Court 1989); see also Morris v. Oldham County Fiscal Court, 201 held as to Freeman that he had stated a cause of action under F.3d 784, 791-92 (6th Cir. 2000). In Count V of his § 1982 inasmuch as he had paid a monthly rental for complaint, Plaintiff claims that Defendants discriminated Sullivan’s assignment of the membership share in Little against him because he “opposed” the hiring of individuals in Hunting Park, and therefore the transaction in which Freeman conflict with the A-900 process; and that Defendants engaged was clearly a “lease” transaction protected by § 1982. terminated him in retaliation for Plaintiff’s “participation” in Id. at 236-37. The Supreme Court reasoned as follows: filing an EEOC claim. The right to ‘lease’ is protected by § 1982 against the To establish a claim under either clause, Plaintiff must meet actions of third parties, as well as against the actions of the test of a slightly modified McDonnell Douglas framework the immediate lessor. Respondents’ actions in refusing by showing that: 1) he engaged in activity protected by Title to approve the assignment of the membership share in VII; 2) this exercise of protected rights was known to this case was clearly an interference with Freeman’s right Defendants; 3) Defendants thereafter took an adverse to ‘lease.’ A narrow construction of the language of employment action against Plaintiff, or Plaintiff was § 1982 would be quite inconsistent with the broad and subjected to severe or pervasive retaliatory harassment by a sweeping nature of the protection meant to be afforded supervisor; and 4) there was a causal connection between the by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from protected activity and the adverse employment action or which § 1982 was derived. harassment. See Morris, 201 F.3d at 792 (citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. Id. at 237 (emphasis added) (citing Jones v. Alfred H. Mayer 1990)). If Plaintiff establishes a prima facie case under either Co., 392 U.S. 409, 422-37 (1968)). The Supreme Court then clause, then the burden shifts to Defendants to articulate a found as follows regarding Sullivan’s standing to bring his legitimate, nondiscriminatory reason for Plaintiff’s discharge. claims: Id. (citing McDonnell Douglas, 411 U.S. at 802). Plaintiff must then demonstrate that the proffered reason was not the We turn to Sullivan’s expulsion for the advocacy of true reason for the employment action – i.e., that the reason Freeman’s cause. If that sanction, backed by a state was a mere pretext for discrimination. Id. (citing Burdine, court judgment, can be imposed, then Sullivan is 450 U.S. at 256). punished for trying to vindicate the rights of minorities protected by § 1982. Such a sanction would give In this case, the district court found that Plaintiff’s claims impetus to the perpetuation of racial restrictions on brought under both the opposition clause and the participation property. That is why we said in Barrows v. Jackson, clause of § 2000e-3(a) failed as a matter of law because 346 U.S. 249, 259 [(1953)], that the white owner is at Plaintiff could not have held a good faith belief that he was times ‘the only effective adversary’ of the unlawful restrictive covenant. Under the terms of our decision in 24 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 21

and equality in employment. The approach that is in line with Barrows, there can be no question but that Sullivan has § 1981 and Title VII’s broad remedial purpose, as well as the standing to maintain this action. case law in support thereof, is to allow the jury to decide whether the high-level affirmative action official was Sullivan, 396 U.S. at 237 (emphasis added). discriminated against for his “advocacy” on behalf of women and minorities, irrespective of whether the advocacy was part Likewise, in the case at hand, Plaintiff alleged in his of the official’s contractual duties. That is not to say that complaint that he was sanctioned or punished when, among every job-related action undertaken by a high-level other things, University officials “excluded him from affirmative action official should be considered protected decisions and policies affecting the West campus and the conduct. However, when the action undertaken by the official Alliance . . . because of Plaintiff’s support of affirmative- is the advocacy of hiring practices that do not discriminate on action policies and minority hires[]” protected under Title VII the basis of race, sex, or ethnicity — such as Plaintiff’s and § 1981. See Plaintiff’s Amended Complaint, ¶ 21; J.A. advocating a nondiscriminatory hiring practice in line with the at 100027. Plaintiff also alleged that he was sanctioned or A-900 process — the advocacy can indeed be considered punished for his advocacy on behalf of female and minority protected conduct under Title VII and § 1981, and a jury hires through his termination, or “expulsion” if you will, from should decide whether a defendant employer has employment by the University. See id., ¶ 28; J.A. at 100029. discriminated or retaliated against the high-level affirmative As in Sullivan, if these “sanctions” were allowed to go action official for this advocacy. unredressed, it would give impetus to the perpetuation of racial and minority discrimination in hiring which Title VII of In every civil rights action it is the responsibility of the jury the Civil Rights Act of 1964, affirmative action programs, and determine whether the defendant’s actions were invidious, § 1981, were designed to prevent. See Kaiser Aluminum & pretextual, or improperly motivated. This case is no different. Chemical Co., 443 U.S. at 201; Sullivan, 396 U.S. at 237; We therefore reverse the district court’s grant of summary Winston, 558 F.2d at 1270 (finding that the Supreme Court’s judgment to the University and Dr. Steger in his official holding in Sullivan, while directed to § 1982, was applicable capacity on Plaintiff’s claims brought under § 2000e-2, and to to § 1981 inasmuch as both statutes were originally enacted Dr. Steger and Dr. Harrison individually on Plaintiff’s claims as part of the Civil Rights Act of 1866 and were designed brought under § 1981. with the same purpose in mind: “to uproot the institution of slavery”)6. B. Section 2000e-3(a): Retaliation Discrimination under the Opposition & Participation Clauses 6 Section § 2000e-3(a) provides in relevant part as follows In light of Sullivan, and in light of Winston’s holding that Sullivan is applicable to § 1981 claims, the dissent’s contention that the majority cannot point to any case where general advocacy of minority rights has It shall be an unlawful employment practice for an been found to violate either § 1981 or Title VII, is unfounded. employer to discriminate against any of his employees Furthermore, as stated throughout this opinion, simply because it was . . . because [the employee] has opposed any practice Plaintiff’s job to insure that Defendants did not engage in discriminatory made an unlawful employment practice by this hiring practices the likes of which Defendants had previously been found subchapter, or because he has made a charge, testified, to employ, does not thereby immunize Defendants from retaliating against assisted, or participated in any manner in an Plaintiff for doing his job. Obviously, the dissent’s question as to how the situation would differ if the advocacy was for a plan that failed to investigation, proceeding, or hearing under this meet the standard of Croson v. City of Richmond, 478 U.S. 1016 (1986) subchapter. is rhetorical. If an employee was retaliated against by his employer for 22 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 23

Contrary to the district court’s assertion, Plaintiff’s status indeed, to violate law which was designed to serve “as a spur as a high-level affirmative action official does not change the or catalyst to cause ‘employers and unions to self-examine fact that his advocacy on behalf of women and minorities is and to self-evaluate their employment practices and to protected activity or that he is a member of a protected class. endeavor to eliminate, so far as possible, the last vestiges of Simply because the employer has placed an individual in the an unfortunate and ignominious page in this country’s history position of a high-level affirmative action officer and . . . .’” Kaiser Aluminum & Chem. Corp., 443 U.S. at 204 contracted with the individual to advocate on behalf of (quoting Albemarle Paper Co. v. Moody, 442 U.S. 405, 418 women and minorities to insure equality in employment (1975)). within the institution, does not thereby immunize the employer from being held liable for illegally discriminating Therefore, having found that Plaintiff was indeed a member against that individual for such advocacy. To hold otherwise of protected class, and that he proffered direct evidence that would allow an institution to contract with an individual for he was discriminated against because of his advocacy, we the position of a “high level affirmative action official;” put believe that a question of fact exists for the jury to decide into place an allegedly nondiscriminatory hiring practice such whether Defendants 7 terminated Plaintiff out of a as the A-900 process; circumvent the hiring process against discriminatory animus. The district court’s approach to this the express advocacy and advice of the affirmative action matter turns back the hands of time on the issue of civil rights official; and discriminate or retaliate against the affirmative action official for his advocacy, thus sending a message to the official that he either remain silent or be “punished.” 7 An example of such direct evidence offered by Plaintiff is taken Said differently, an employer inclined to engage in from Plaintiff’s deposition testimony made in response to the question of whether Dr. Steger, in Plaintiff’s view, expressed race consciousness in invidious discrimination in the workplace could hire an making hiring decisions: affirmative action official in order to convey the false During the search for the provost at the University, I made impression that the employer is interested in eliminating a recommendation to Dr. Steger that proactive consideration be illegal discrimination from the workplace, and proceed to given to Dean Castenell; that based upon the candidates being retaliate against the official secure in the knowledge that no brought into the University from outside that I felt Dean Castenell had more experience and would be more effective. legal claim could be lodged against the employer for its Dr. Steger’s response was, “We already have two black vice actions. Thus, to hold that a high-level affirmative action presidents. I can’t bring in a black provost.” My response was, official cannot bring a Title VII claim for discrimination “Dr. Steger, you’re the President of the University, and it’s my based upon his or her advocacy of women and minorities expectation that you demonstrate the issues and concerns in would be to invite stratagems designed to circumvent, and staffing is that we get the best person available, not the fact that you’ve got three senior black officers.” His response was, “Faculty would kill me if I would bring in a black provost, particularly with us already having two black vice presidents at speaking out on behalf of minorities, whether or not a plan met the the University.” standard of Croson, the employee may have a viable claim – irrespective That was a very disturbing response, to me, for a president of the employee’s race or ethnicity -- under § 1981 or Title VII. See to be making to the Vice President of Human Resources, when Sullivan v. Little House Park, Inc., 396 U.S. 229, 231-37 (1969); Tetro v. I had been charged always to ensure that we hire the best person Popham, 173 F.2d 988, 994 (6th Cir. 1999); Winston v. Lear Siegler, Inc., possible and that we always identify a diverse pool of candidates 558 F.2d 1266, 1270 (6th Cir. 1997). Indeed, the Supreme Court found and that we give full consideration to them based upon Sullivan’s “advocacy . . . for trying to vindicate the rights of minorities” experience, their expertise, and whether they would be able to do to be protected conduct such that Sullivan had standing to sue. See the job or not. Sullivan, 396 U.S. at 237. (J.A. at 100737-38.)