44Johnson v. Univ. of Cincinnati, et al.No. 98-3016University’s affirmative action procedures and occurred whilehe was acting in his official position and consisted only of aletter and memos addressed to the president and othermembers of the Board of Trustees (of which plaintiff was amember as Vice President of Human Relations), I think thatthe University had a significant interest in regulating thespeech to make certain that it was presented in the mostinformative and helpful manner. Had the plaintiff presentedhis concerns in a public venue, my resolution of this issuewould be different. The plaintiff, however, limited his speechto the confines of the University and conveyed his views inhis official position as to the success or lack of success of theUniversity’s affirmative action program. I believe that in thissituation the plaintiff’s speech is not entitled to FirstAmendment protections. I think that the district court did noterr in granting summary judgment in favor of the defendantson plaintiff’s First Amendment claims.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0184P (6th Cir.)File Name: 00a0184p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________JOHNB.JOHNSON,Plaintiff-Appellant,v.UNIVERSITY OFCINCINNATI,JOSEPHA.STEGER, andDONALDC.HARRISON,Defendants-Appellees.;>1No. 98-3016Appeal from the United States District Courtfor the Southern District of Ohio at Cincinnati.No. 96-00727—Sandra S. Beckwith, District Judge.Argued: January 29, 1999Decided and Filed: June 1, 2000Before: KENNEDY, DAUGHTREY, and CLAY, CircuitJudges._________________COUNSELARGUED: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.2Johnson v. Univ. of Cincinnati, et al.No. 98-3016Mezibov, SIRKIN, PINALES, MEZIBOV & SCHWARTZ,Cincinnati, Ohio, Ted L. Wills, Cincinnati, Ohio, forAppellant. John B. Pinney, Michael A. Roberts, GRAYDON,HEAD & RITCHEY, Cincinnati, Ohio, for Appellees.CLAY, J., delivered the opinion of the court, in whichDAUGHTREY, J., joined. KENNEDY, J. (pp. 39-44),delivered a separate opinion concurring in part and dissentingin part._________________OPINION_________________CLAY, Circuit Judge. Plaintiff, John B. Johnson, who isAfrican American, was employed by the University ofCincinnati (“the University”) as its Vice President of HumanResources and Human Relations from August 1, 1993 toJanuary 17, 1996, when he was terminated. Central toPlaintiff’s role as Vice President of Human Resources was hismanagement of the University’s affirmative action program,for which Plaintiff had primary responsibility. Following histermination, Plaintiff filed suit against the University; Dr.Joseph Steger, the University’s president; and Dr. DonaldHarrison, the University’s Senior Vice-President and Provostof University Hospital, alleging that Defendants discriminatedagainst him by removing him from his duties because ofPlaintiff’s advocacy on behalf of minorities and his filing ofan EEOC claim against the University. The district courtdismissed or granted summary judgment on all nine counts ofPlaintiff’s complaint. Plaintiff now appeals the districtcourt’s order granting summary judgment to Defendants onhis claim for race and national origin discrimination broughtunder 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e-2;retaliatory discrimination brought under the opposition andparticipation clauses of 42 U.S.C. § 2000e-3(a); as well as hisclaim brought under 42 U.S.C. § 1983 for violation of hisright to free speech under the First Amendment. For thereasons set forth below, weAFFIRM in part,REVERSE inNo. 98-3016Johnson v. Univ. of Cincinnati, et al.43The majority can point to no case where discrimination based ongeneral advocacy of minority rights has been found to violate either§ 1981 or Title VII. What if the general advocacy is for a plan that failsto meet the standard ofCity of Richmond v. J.A. Croson Co., 488 U.S.469, 109 S. Ct. 706, 102 L.Ed.2d 854 (1989)?claim under the participation clause of section 2000e-3(a)should be liberally construed and his termination occurred inclose proximity to his filing of an EEOC claim whilecomplaints with respect to his performance occurred over anextended period, I agree with the majority that the districtcourt erred in granting summary judgment on this claim.Finally, I turn to plaintiff’s claims under the FirstAmendment. While I am aware of the cases in which courtshave held that discussions of affirmative action are a matterof public concern, I do not think those cases apply where thespeaker is a high level affirmative action official and thecommunications are within the organization. In his positionat the University, the plaintiff’s job was to advocate on behalfof minorities. Technically, every word that the plaintiff spokeduring his tenure in this position concerned affirmative actionbecause of the nature of his job. In the unique circumstancesof this case, I do not think that the plaintiff is entitled to theprotections of the First Amendment unless he can show thathis speech was not integrally connected with his job. Whenconsidering whether an employee’s speech is protected by theFirst Amendment, this Supreme Court has adopted a two partinquiry. First, the Court asks whether the speech was ofpublic concern. If that question is answered in theaffirmative, the next question is whether the plaintiff’sinterest in speaking outweighed the defendant’s interest inregulating his speech.See Connick v. Meyers, 461 U.S. 138,146, 103 S.Ct 1684, 1690, 75 L.Ed.2d 708 (1983);Pickeringv. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35,20 L.Ed.2d 811 (1968). In this case, I do not think that theinquiry can be separated into two steps. Instead, the two stepsmerge when the employee’s position requires him to speak onissues that normally would be of public concern. Because theplaintiff’s speech concerned the inner workings of the42Johnson v. Univ. of Cincinnati, et al.No. 98-30162When you come to the claim that Dr. Steger violated § 1981 becauseof plaintiff’s general advocacy for the use of the affirmative action planand disagreement over the President’s use of the waiver for particularjobs, the plaintiff’s claim is even more murky. Plaintiff has not claimedthat the University of Cincinnati violated section 1981 or Title VII in itsfailure to hire any specific individuals. While he made that claim on hisown behalf in the District Court, he has not appealed its dismissal. Hisdisagreement with the University related to the implementation of itsaffirmative action plan, a plan the University maintained even though theterm of the plan had expired and which was adopted without any findingor admission of discrimination.The failure to hire the African-American candidate as head of theAlliance hospitals was not even covered by the affirmative action plan.Nor did Dr. Steger participate in it.matters in the course of employment. I do not believe thiscase can be distinguished fromHolden. An affirmative actionofficial’s job is to advocate on behalf of minorities and themajority’s holding that when an affirmative action officialdisagrees with his employer he has a cause of action underTitle VII creates a disincentive for employers in their decisionto establish an affirmative action officer position. Themajority attempts to distinguishHoldenby stating that theplaintiff was not protesting the implementation of anaffirmative action program, but rather, he was protestingdiscrimination in hiring. In reality, there is no distinction.The plaintiff contends that he was terminated for his activeadvocacy on behalf of minorities, yet, this was his job. If hewas not performing his job to the satisfaction of hisemployers, the University is entitled to dismiss him. Theplaintiff has presented no evidence that his advocacy wentbeyond the scope of his employment, and I believe this issignificant. I do think that the plaintiff’s employment as ahigh level affirmative action officer does and should make adifference in the analysis of his claims. Because it was hisjob to advocate on behalf of minorities I do not think he isentitled to protected status for his general advocacy on behalfof minorities. For this reason, I believe that the defendantsare entitled to summary judgment on plaintiff’s claims undersection 1981, section 2000e-2 of Title VII and the oppositionclause of section 2000e-3(a)Title VII.2Because the plaintiff’sNo. 98-3016Johnson v. Univ. of Cincinnati, et al.3part, andREMANDthe case back to the district court fortrial.BACKGROUNDA. The University and its Affirmative Action PolicyAs a federal contractor, the University is required to meetcertain affirmative action obligations.See41 C.F.R. § 60-1.40; Executive Order No. 11246. These obligations consistof, among other things, maintaining and updating affirmativeaction programs; analyzing the University’s workforce by raceand sex; analyzing areas of underutilization of women andminorities; maintaining data regarding the employment ofwomen and minorities; and analyzing the impact of theUniversity’s employee selection process.See41 C.F.R. § 60-1.40; § 60-2.11(a); § 60-2.11(b); § 60-3.4; § 60-3.15.In 1978, the Office of Federal Contract Compliance andPrograms (“OFCCP”) investigated the University and foundpay disparities among African Americans and women in theUniversity; the OFCCP therefore concluded that theUniversity was in violation of its affirmative action duties.See41 C.F.R. § 60-1.26. As a result, the University and theOFCCP entered into a Conciliation Agreement wherein theUniversity agreed to implement procedures to preventdiscrimination against women and minorities. Theseprocedures consisted of identifying underutilized positions,creating a list of new candidates for new positions, andensuring that the list included names of qualified women andminorities. If a non-minority male applicant was selected andif women and minorities did not appear on the candidate list,then the employing unit at the University was required to givewritten reasons for the omissions. The affirmative actionoffice was to approve or disapprove the selected person aftera determination of whether sex or race was a factor in theselection.In an effort to comply with the mandates of the ConciliationAgreement regarding the University’s hiring practice, theUniversity developed a form – known as the A-900 form or4Johnson v. Univ. of Cincinnati, et al.No. 98-3016A-900 process – that tracked open employment positions.Under this process, the hiring manager of each departmentwishing to fill a vacant position, no matter how high or low inthe organizational structure, was required to complete an A900 form and submit it to the affirmative action office(“AAO”). In turn, the AAO would inform the hiring managerwhether the vacant position was underutilized; meaningwhether the position was one that statistically had fewerwomen and minorities employed than would be expectedgiven the makeup of the overall population.If the position to be filled was underutilized, the hiringmanager was required to advertise the open position,assemble a pool of candidates, select a candidate, and sendthe information to the AAO. If the selected candidate was nota member of the underutilized class, then the affirmativeaction director and the hiring manager would considerwhether sufficient numbers of members of the underutilizedclass were considered. The affirmative action director couldreject the selected candidate and require the hiring manager tobegin a new search. However, Dr. Steger as president of theUniversity, could waive the A-900 process and allow a hiringmanager to hire a non-minority candidate, despite theunderutilization of minorities within the particulardepartment, and over the objection of the AAO.Following the expiration of the Conciliation Agreement in1980, the University’s AAO fell into a state of disarray. Inthe spring of 1988, Dr. Steger appointed the President’sAdvisory Council on Race Relations and Human Decency(“PACRRHD”) and charged it with examining issues of racerelations at the University. The focus of the PACRRHD wasto “create a diverse community in which all members feel asense of responsibility for the elimination of ignorance,suspicion, prejudice and racism.” In a report submitted to Dr.Steger on August 4, 1989, the PACRRHD noted that althoughAfrican Americans occupied 28% of the University’s totalstaff, they occupied the lower employment categories at theUniversity in vastly disproportionate numbers. For example,African Americans occupied 74% of the service staff, 29% ofNo. 98-3016Johnson v. Univ. of Cincinnati, et al.41section 2000e-2 claims against the University and Dr. Stegerin his official capacity cannot survive.I also am at a loss as to how the majority can sustainplaintiff’s § 1981 claim against Dr. Harrison in his individualcapacity. The plaintiff has presented no evidence that Dr.Harrison influenced the University and its officials in thedecision to relieve the plaintiff of his duties. In his brief tothis court, the plaintiff does not even address the viability ofhis § 1981 claim against Dr. Harrison. Instead, he focuses hisargument on Dr. Steger’s role in his dismissal. I believe theplaintiff chose this tactic because there were no grounds uponwhich to find Dr. Harrison liable for a § 1981 violation and Ibelieve that it is error for this court not to dismiss plaintiff’s§ 1981 claim against Dr. Harrison in his individual capacity.Plaintiff’s claims under § 1981 and § 2000e-2 of Title VII,along with plaintiff’s retaliation claim under the oppositionclause of Title VII, also fail because plaintiff has failed toestablish that he is a member of a protected class. Althoughthe majority attempts to show that it has been long establishedthat an advocate for a minority who has been discriminatedagainst is protected under Title VII and § 1981, I believe thatthe majority’s analysis of our prior cases is fundamentallyflawed. I agree with the majority that individuals arepermitted to pursue claims of discrimination based on theiradvocacy of another person’s rights, but, in all of these cases,the individual is advocating upon the behalf of a specificindividual or specific individuals whose constitutional rightsor Title VII rights have been violated. Plaintiff’s claim is notbased on his advocacy of specific individuals, but rather, heclaims protected class status based on his general advocacy.When we extend protected class status to individuals like theplaintiff, we undermine the protections afforded by Title VIIand the Constitution. Plaintiff’s claim against the Universityand its employees basically boils down to a disagreement overthe implementation of an affirmative action program. ThisCircuit, inHolden v. Owens-Illinois, 793 F.2d 745, 751 (6thCir. 1986), held that an employee does not obtain protectedstatus simply because the employee handles affirmative action40Johnson v. Univ. of Cincinnati, et al.No. 98-3016give me adequate support for my position on bothcampuses.The plaintiff does not raise any issues contending that he experienceddiscrimination based on his race or national origin and any attempt toconstrue his claim as anything but a claim based on his advocacy ofminority rights is erroneous. Recasting the plaintiff’s claim as one ofadvocacy on behalf of specific individuals as the majority appears to do,rather than one of general advocacy, fails because the plaintiff presentedno evidence connecting his advocacy on behalf of these specificindividuals to his discharge.advocacy, the direct evidence of discrimination also mustconcern advocacy. I find no direct evidence in the recordestablishing that any of the defendants discriminated againstthe plaintiff based on his advocacy; therefore, the plaintiff’sclaim can survive only if he can establish a prima facie caseof discrimination under theMcDonnell Douglas-Burdinetest.As stated in the majority opinion, the plaintiff must show that(1) he is a member of a protected class; (2) he was qualifiedfor his job; (3) he suffered an adverse employment action; and(4) he was replaced by someone outside the protected class orwas treated differently than a similarly situated individualoutside the protected class.See McDonnell Douglas Corp. v.Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d668 (1973). I do not believe that the plaintiff has satisfiedeither the first or fourth prong of this test. In my discussionof plaintiff’s retaliation claim under the opposition clause ofTitle VII, I address the plaintiff’s status as a member of aprotected class. For purposes of this analysis, I will limit mydissent to the plaintiff’s failure to establish the existence ofthe fourth prong, although I believe that my analysis ofplaintiff’s protected status below applies equally to theseclaims. The protected class to which the plaintiff claimsmembership can be classified as the class of advocates forminorities. The plaintiff has presented no evidence toestablish either that he was replaced by someone who was notan advocate for minorities or that other “non-advocates” whowere similarly situated were treated differently. Theplaintiff’s has failed to establish a prima facie case ofdiscrimination; therefore, his section 1981 claims against Dr.Steger and Dr. Harrison in their individual capacity and hisNo. 98-3016Johnson v. Univ. of Cincinnati, et al.5the technical staff, and 33% of the secretarial staff; however,African Americans occupied only 10% of theexecutive/administrative staff and 11% of theprofessional/non-faculty staff. Based on these findings, thePACRRHD recommended a new comprehensive affirmativeaction initiative at the University with specific goals towardincreasing the number of minorities in upper level positions.The PACRRHD also recommended the creation of a new highlevel position to head the affirmative action program. Theindividual selected for this position would report directly tothe president and have Cabinet-level status, and would beresponsible for “following current Affirmative Actionfunctions, as well as the development of new programs,policies and diversity initiatives to improve and enhance thequality of life.” In response to the PACRRHD’srecommendations, the Vice President of Human Resourcesand Human Relations (“VPHHR”) position was createdwherein the individual occupying that role would be in chargeof both human resources and the affirmative action program.B. Plaintiff’s Role and Course of Employment at theUniversityIn 1993, Dr. Steger recruited Plaintiff to serve as theVPHHR following a national search. Plaintiff signed a threeyear contract and began his duties as VPHHR on August 1,1993. Plaintiff was the second person to occupy this role; andthere was a period of time before Plaintiff was appointed thatthe position was unoccupied and the AAO was without apermanent head. As a result, at the time Plaintiff was broughtaboard, the AAO was in state of disorder and flux. There wasa back log of A-900 forms that had accumulated during thetime the AAO was without a head, as well as large number ofA-900 waivers. For example, there were approximately 300waivers of the A-900 process from 1992 to May of 1994.Plaintiff expanded the AAO, and hired George Wharton as itsdirector in September of 1994.Plaintiff was troubled by what he perceived to be theexcessive number of waivers of the A-900 process, and in6Johnson v. Univ. of Cincinnati, et al.No. 98-30161The OFCCP in fact conducted a second audit of the Universitywhich was completed on May 26, 1995, and thereafter sent the Universitya completed audit outlining nine violations. However, over the objectionsof Plaintiff and Wharton, Dr. Steger retained the services of an outsidelaw firm to respond to the notice from the OFCCP rather than allowPlaintiff the opportunity to respond to the violations.July of 1994, Plaintiff sent a memorandum to the Cabinetmembers entitled, “Is there an Affirmative ActionCommitment?” In the memorandum, Plaintiff expressed hisconcern about the number of waivers in the A-900 process,questioned the University’s commitment to equal employmentopportunities, and warned that continued violations couldcause the OFCCP to enforce a new conciliation agreement.1Throughout 1994 and 1995, Plaintiff became particularlyconcerned with the University’s commitment to affirmativeaction regarding University Hospital’s association in the“Alliance,” a private, non-profit health care managementcorporation with a single board of directors created to manageand control four of the major hospitals in the community. Byjoining the Alliance, the University surrendered dailyoperation of University Hospital to the health caremanagement group, although those employed there remainedemployees of the University until January 1, 1997. Despitehis requests, Plaintiff was not allowed to play any meaningfulrole with respect to Alliance, even though the human resourcecounterparts from the other hospitals involved regularlycontributed.Under the Alliance agreement, the University was requiredto hire a Senior Executive Officer (“SEO”) to run theUniversity Hospital’s daily operations. The SEO was to be anAlliance employee who reported directly to the President ofthe Alliance; however, the University participated in thehiring selection for this position. An outside search firm washired to facilitate the search. The search firm identifiedapproximately 200 resumes; out of these resumes, threecandidates were selected for the final vote: a white male, anAfrican-American male, and a white female. AfterNo. 98-3016Johnson v. Univ. of Cincinnati, et al.391In his brief to this court, the plaintiff identified three issues forreview. His claims under Title VII,§1981, and the First Amendmentwere couched in terms of his advocacy upon behalf of minorities. Inparticular, his brief states the issues as follows:“2. Whether, for Mr. Johnson’s Title VII and 42U.S.C. §1981 claims, he had a protected status becausehe advocated minority rights.3. Whether, for Mr. Johnson’s First Amendmentretaliation claim, the importance of his advocacy ofminority rights outweighed UC’s interest inmaintaining the operation of its affairs.”In addition, his complaint to the EEOC stated:The university employs me as the Vice President forHuman Resources. The institution has obstructed mefrom performing my assignment as the executiveauthorized for planning and operating human resourcesystems for the east and west . . .President Joseph Stegar tells me that I am authorized toperform my executive level duties, but he also fails to_____________________________________________CONCURRING IN PART, DISSENTING IN PART_____________________________________________KENNEDY, concurring in part and dissenting in part.While I agree with the majority’s resolution of the immunityissues and Dr. Johnson’s retaliation claim under theparticipation clause, I dissent from the majority opinionbecause I disagree with the majority’s resolution of the rest ofthe plaintiff’s claims. In particular, I disagree with themajority’s analysis of the plaintiff’s claims under Title VIIand § 1981. I also dissent from the majority’s decision on theplaintiff’s First Amendment claims.The majority holds that the plaintiff presented directevidence of the defendants’ discrimination through histestimony concerning University officials’ expressions of raceconsciousness during the hiring process. This testimony,however, does not provide direct evidence of the defendants’discrimination against the plaintiff based on his advocacy ofminority rights.1Because plaintiff’s claim is based on his38Johnson v. Univ. of Cincinnati, et al.No. 98-3016disagree with the district court’s conclusion that theUniversity’s interest outweighed Plaintiff’s interest inspeaking out on behalf of the University’s failure to complywith its affirmative action policies. Even if Plaintiff’s speechdelayed the University’s hiring of prospective employees, thisdoes not rise to the level of having a detrimental impact onclose working relationships or undermining a goal or missionof the University.See Meyers,934 F.2d at 730. To thecontrary, Plaintiff’s speech regarding the University’s failureto comply with its A-900 process promoted or advanced theUniversity’s alleged goal of employment equality for womenand minorities; his speech did not undermine that goal.Furthermore, the district court’s grant of summary judgmentbased upon its determination that there were no materialfactual disputes regarding the disruptive impact of Plaintiff’scomplaints upon the University’s business was improper inany event; the contested issues of fact, based upon theparties’ differing characterizations of the evidence, are verymuch in dispute and would be best left for determination attrial.See Mount Healthy City Sch. Dist. Bd. of Educ.,429U.S. at 287. We therefore reverse the district court’s ordergranting summary judgment to Dr. Steger and Dr. Harrisonindividually on this claim.CONCLUSIONFor the above-stated reasons, weAFFIRMthe grant ofsummary judgment to the University on Plaintiff’s claimsbrought under the 42 U.S.C. § 1981 and § 1983 on EleventhAmendment immunity grounds; and to Dr. Steger and Dr.Harrison individually on Plaintiff’s claims broughtunder TitleVII. However, weREVERSEthe grant of summaryjudgment to the University and Dr. Steger in his officialcapacity on Plaintiff’s claims brought under § 2000e-2, andunder both the opposition and participation clauses of§ 2000e-3; and to Dr. Steger and Dr. Harrison on Plaintiff’sclaims brought under § 1981 and § 1983. We alsoREVERSEany corresponding pendant state law claims andREMANDthe matter for trial.No. 98-3016Johnson v. Univ. of Cincinnati, et al.7interviewing all three candidates, Plaintiff cast his vote infavor of the African-American male based on the candidate’soverall experience as well as the fact that Plaintiff found himto be the strongest of the three candidates. However, thewhite male was selected for the SEO position by receiving themajority of votes by the selection committee. At a July 25,1994 meeting attended by Dr. Harrison and Plaintifffollowing the SEO selection, it was agreed that Plaintiffwould direct the search for the next two executive levelpositions to become available at the University Hospital, andthat efforts would be made to target minorities to fill thesepositions. Plaintiff sent a memorandum dated July 27, 1994,to Dr. Harrison detailing Plaintiff’s understanding of theoutcome of the meeting.In August of 1995, Dr. Harrison sought a waiver of the A900 process to fill the position of Vice Chairman of theDepartment of Surgery for the College of Medicine.Specifically, Dr. Harrison requested that he be able to hire Dr.James Hurst, a former member of the College of Medicinefaculty, without going through the A-900 process because heknew and endorsed the former member’s experience andabilities. Plaintiff sent a letter dated September 21, 1995, toDr. Steger protesting Dr. Harrison’s waiver of the A-900process and questioning the University’s commitment toproviding equal opportunities in employment. DespitePlaintiff’s protestations, Dr. Steger approved the A-900waiver at Dr. Harrison’s request.A few months later, in November of 1995, the Universitywas negotiating with District 925 of the Service EmployeesInternational Union (“925") and, as VPHHR, Plaintiffparticipated in the negotiations. District 925 represents thesecretarial and support staff of the University. The contractbetween the University and 925 employees was up forrenewal, and the critical issue during the negotiations wastuition remission; that is, the amount of money 925employees would have to reimburse the University for thecost of tuition waivers granted by the University in the eventthe employee failed to achieve a certain minimum grade.8Johnson v. Univ. of Cincinnati, et al.No. 98-3016This issue was the final barrier to the University and 925reaching an agreement, and the University was prepared toaccept the cost of a strike if925 did not agree to theUniversity’s terms.Dr. Steger met with Plaintiff and Stephanie Echols, theUniversity’s representative at the negotiations, to discuss thestatus of the 925 matter. There is a dispute as to whattranspired at the meeting inasmuch as Dr. Steger contendsthat the three discussed a proposal from 925, which Dr. Stegerrejected; while Plaintiff contends that there was no proposalrejected at the meeting. However, that aside, the parties arein agreement that it was understood that the University wouldrisk a strike rather than comply with the 925 remissiondemands. At the close of the meeting, Dr. Steger indicatedthat he had to leave to attend a dinner engagement, but that hecould be reached at home later in the evening if developmentswere made in the 925 negotiations.Echols negotiated with 925 until late into the evening,repeatedly updating Plaintiff on her progress. According toEchols, each time that she updated Plaintiff, he repeated Dr.Steger’s warning that the University would accept a strikerather than concede to tuition remission. Finally, at about11:30 p.m., Echols tentatively agreed with 925 members ona proposal that she believed would satisfy the University andinformed Plaintiff of the proposed settlement. However,according to Plaintiff, he informed Echols at that time that thetentative settlement to which she agreed was not in line withwhat the University was prepared to accept. Echols repliedthat the parties had departed, and if the tentative settlementwas not acceptable, it could be addressed later.Due to the late hour -- about midnight by this time --Plaintiff decided to wait until the morning to telephone Dr.Steger and inform him of the proposed settlement. Plaintifftelephoned Dr. Steger at his office at approximately 7:00 a.m.,the next day; however, Plaintiff did not speak with Dr. Stegerbecause he had already left for a breakfast meeting with thedeans of the University. News of the proposed settlementNo. 98-3016Johnson v. Univ. of Cincinnati, et al.37his complaints and concerns to Cabinet officials rather thanthe general public, is of no consequence because the subjectmatter of Plaintiff’s complaints was an established matter ofpublic concern in this circuit — “an opinion concerning thegeneral policy of affirmative action . . . .”See id.;see alsoChappel v. Montgomery County Fire Protection Dist. No. 1,131 F.3d 564, 579 (6th Cir. 1997) (“Constitutional protectionfor speech on matters of public concern is not premised on thecommunication of the speech to the public.”). The plaintiffinRankinvoiced her opinion about the President in a privateconversation which was later reported to her employer;however, the Supreme Court found that the speech, eventhough internal, was nonetheless of a public concern andtherefore protected because it involved the President.SeeRankin,483 U.S. at 386. The same reasoning applies to thiscase.Therefore, having found that Plaintiff’s speech was a matterof public concern, the next relevant inquiry under this claimconcerns comparing the University’s proclaimed need to runan efficient organization against Plaintiff’s right to speak.SeePickering,391 U.S. at 568. “In order to justify a restrictionon speech of public concern by a public employee, plaintiff’sspeech must impair discipline by superiors, have a detrimentalimpact on close working relationships, undermine a legitimategoal or mission of the employer, impede the performance ofthe speaker’s duties, or impair harmony among co-workers.”Meyers,934 F.2d at 730.Here, the district court found that Plaintiff’s speech at issuewas a matter of public concern, but that the University’sinterest outweighed Plaintiff’s right to free speech in thiscontext, because Plaintiff’s verbal complaints about theUniversity’s failure to comply with its A-900 procedure was“causing a tremendous disruption in the University’s abilityto deliver its services.” (J.A. at 100088.) The district courtbased its conclusion on various evidence in the record thatPlaintiff had been tying up employment decisions within theUniversity because of his protests regarding the University’sfailure to follow its affirmative action program.Id.We36Johnson v. Univ. of Cincinnati, et al.No. 98-3016contravention of city policy on affirmative action” to twoemployees of an organization the purpose of which was toassist minorities in competing for jobs.Id.at 727. Theplaintiff claimed that his statements on affirmative action ledto his constructive discharge.Id. at 729. In finding that theplaintiff’s statements were protected under the FirstAmendment in that they addressed a matter of public concern,we noted that the case was “analogous toRankin[v.McPherson], notConnick[v.Myers].”Id.We then opinedas follows:InConnickpermissible employment action was taken asa result of an internal office dispute about a transfer, andthe speech was concerned only with internal officepolicy. InRankinthe employee had no dispute with heremployer until she stated at work that if a second attemptwere made on the President’s life she hoped it would besuccessful. The court held that in context the speechaddressed the employee’s dissatisfaction with thePresident’s cuts in Medicaid, CETA and welfare benefits.The Court said that “conversation addressing thepolicies of the President’s administration . . . [made] onthe heels of a news bulletin regarding what is certainly amatter of heightened public attention: an attempt on thelife of the President,” is plainly a matter of publicconcern.Rankin, 483 U.S. at 386, 107 S. Ct. at 2898.The speech scrutinized inRankinwas in the form of anopinion, made in a private conversation later reported tothe employee’s supervisor.Id. TheMeyersCourt concluded that “speech about apolitically charged issue like affirmative action — whetherpro or con — should be considered a matter of publicconcern.”Id.at 730.As inMeyers, Plaintiff’s speech was made known to hissupervisor, Dr. Steger, and dealt with the University’s failureto comply with policies relating to its affirmative actionprogram. Therefore, Plaintiff’s speech was a matter of publicconcern.See934 F.2d at 730. The fact that Plaintiff directedNo. 98-3016Johnson v. Univ. of Cincinnati, et al.9apparently did not escape the news media, because Dr. Stegerwas informed of the tentative settlement during his breakfastmeeting with the deans. Dr. Steger was not pleased thatPlaintiff had not reached him with the latest developments,and sent Plaintiff a letter dated November 15, 1995,admonishing Plaintiff while claiming that he “wasembarrassed this morning at a breakfast with the Deans whenthey asked me the terms of the 925 settlement. I had to say Idid not know they settled -- let alone the terms.” (J.A. at298.)Because the Board of Trustees was the body to ultimatelyauthorize the 925 settlement, Dr. Steger requested thatPlaintiff draft a summary of the settlement for the Board toreview at its next meeting on November 28, 1995. The Boardreviewed the summary; however, it demanded to see the fulltext of the agreement before they would approve it, andplanned to meet again on December 18,1995. In themeantime, apparently at Plaintiff’s directive, the payrolldepartment began programming its computers to adjust forthe pay increases and back pay adjustments that werereflected in the settlement. The payroll departmentsubsequently informed Dr. Steger that the payroll adjustmentswould be reflected on the December 5, 1995, paychecksdespite the Board’s lack of final approval because it was notpossible to reverse the computer adjustments at that time.Accordingly, Dr. Steger told the payroll department to issuethe checks as adjusted. On December 18, 1995, the Board,unhappy with the terms of the settlement but constrained bythe adjustments in the payroll system, accepted the 925settlement.Plaintiff filed a complaint with the Equal EmploymentOpportunity Commission (“EEOC”) on December 5, 1995,alleging race and retaliatory discrimination against theUniversity. Plaintiff claimed that University officials,particularly Dr. Harrison, were discriminating against himbecause of his race as an African American, and not allowinghim to fully participate in Human Resource matters in regardto University Hospital. Plaintiff also alleged that he was10Johnson v. Univ. of Cincinnati, et al.No. 98-3016retaliated against for his protestations regarding the hiring ofthe SEO. On or around December 20, 1995, Dr. Stegerinformed his Cabinet that Plaintiff had filed a discriminationcomplaint with the EEOC. Plaintiff met with Dr. Steger onDecember 20, 1995, in the course of a regularly scheduledmeeting, and requested that Dr. Steger provide him withinformation regarding what role the Human Resourcedepartment was to play in managing the personnel affiliatedwith the Alliance, as well as information regarding theBoard’s criticisms of Plaintiff’s handling of the 925negotiations. Dr. Steger agreed to provide Plaintiff with thisinformation in writing within a few weeks.On January 9, 1996, Dr. Steger sent Plaintiff amemorandum outlining what Dr. Stegar found to bedeficiencies in Plaintiff’s performance as VPHHR, includingPlaintiff’s handling of the 925 negotiations, as well ascomplaints that Dr. Steger had allegedly received from otherdepartments regarding the length of time it took Plaintiff toprocess an A-900 form. Dr. Steger concluded the letter byindicating that he “questioned [Plaintiff’s] continued abilityto occupy a leadership position in this University.” Inresponse, Plaintiff sent Dr. Steger a memorandum datedJanuary 16, 1996, wherein Plaintiff disputed Dr. Steger’scriticisms. Plaintiff also indicated that he was surprised byDr. Steger’s “attack” on his performance since he was hearingabout Dr. Steger’s dissatisfaction for the first time. In fact,the record indicates that Plaintiff received two writtenperformance evaluations from Dr. Steger; one in July of 1994,and the other about a year later. Although the secondevaluation was not as complimentary as the first, Dr. Stegergave Plaintiff high marks for his leadership and vision for thefuture in both evaluations.The day after receiving Plaintiff’s memorandum, January17, 1996, Dr. Steger sent Plaintiff a termination notice andremoved Plaintiff from his duties. Plaintiff filed the instantsuit on July 25, 1996.No. 98-3016Johnson v. Univ. of Cincinnati, et al.35147. “Whether an employee’s speech addresses a matter ofpublic concern must be determined by the content, form, andcontext of a given statement, as revealed by the wholerecord.”Id.at 147-48.If Plaintiff’s speech in this regard is found to be a matter ofpublic concern and thus protected, the next inquiry is whetherPlaintiff’s free speech interests outweighed Defendants’interest in regulating his speech under the well knownPickeringbalancing test.See Pickering,391 U.S. at 568.IfPlaintiff’s interests in speaking outweighed that ofDefendants’ interests, then Plaintiff’s First Amendment rightshave been violated.See Dambrot v. Central Mich. Univ.,55F.3d 1177, 1186 (6th Cir. 1995). If the First Amendmentviolation was a substantial or motivating factor inDefendants’ action against Plaintiff, Defendants may presentevidence that they would have terminated Plaintiff in theabsence of his protected conduct, which is a question of factfor the jury to decide.See Mt. Healthy City Sch. Dist. Bd. ofEduc. v. Doyle,429 U.S. 274, 287 (1977).In this case, the district court found that Plaintiff’s speechon Defendants’ noncompliance with its affirmative actionprogram to be a matter of public concern. However, the courtfound that the University’s interests maintaining its hiringprocess without disruption outweighed Plaintiff’s right to freespeech. Although we agree with the district court thatPlaintiff’s speech regarding the University’s failure to complywith the A-900 process was a matter of public concern, wedisagree that the University’s purported interests outweighPlaintiff’s right to free speech.InMeyers v. City of Cincinnati,this Court held that “[j]ustas an opinion concerning the general policy of affirmativeaction would be a matter of public concern, so too is speechconcerning methods of implementing affirmative action.”934 F.2d 726, 730 (6th Cir. 1991),modified on other grounds,979 F.2d 1154 (6th Cir. 1992). The plaintiff inMeyersheldthe title of “assistant fire chief in charge of personnel,” and heallegedly made statements which were “in direct34Johnson v. Univ. of Cincinnati, et al.No. 98-3016Considering this evidence in the light most favorable toPlaintiff, a reasonable jury could find that Plaintiff wasretaliated against for filing his complaint and charge with theEEOC.As with Plaintiff’s claim brought under the oppositionclause, Plaintiff has created an issue of fact for the jury as towhether Defendants’ proffered reasons for Plaintiff’sdischarge were merely pretextual by suggesting thatDefendants’ justifications possibly have no basis in fact or areinsufficient to explain his discharge, and are not the truereasons for Plaintiff’s termination. We therefore reverse thedistrict court’s grant of summary judgment to the Universityand Dr. Steger in his official capacity on Plaintiff’s claimbrought under the participation clause of Title VII.IV. SECTION 1983 CLAIM FOR VIOLATION OFFIRST AMENDMENT RIGHTSIn Count VI of his amended complaint, Plaintiff brought aclaim under 42 U.S.C. § 1983, alleging that Defendantsretaliated against him for voicing his concerns aboutDefendant’s failure to properly implement and comply withthe A-900 process -- Defendant’s affirmative action program-- in violation of Plaintiff’s First Amendment right to freespeech.As a public employee, to establish a § 1983 claim thatDefendants denied Plaintiff his right to free speech under theFirst Amendment, Plaintiff had to prove that 1) the action wastaken against him for speech that was directed toward an issueof public concern, and that 2) his interest in speaking as hedid outweighed Defendants’ interest in regulating his speech.See Connick v. Myers,461 U.S. 138, 147 (1983);Pickering v.Board of Educ.,391 U.S. 563, 568 (1968).The initial inquiryinto determining whether a public employee’s speech is amatter of public concern is a question of law for the court todecide.Rankin v. McPherson,483 U.S. 378, 386 n.9 (1987).Absent unusual circumstances, a public employee’s speechdealing with “matters only of personal interest” is notafforded constitutional protection.See Connick,461 U.S. atNo. 98-3016Johnson v. Univ. of Cincinnati, et al.112We note that the Ohio Supreme Court has recently indicated “thatfor purposes of R. C. Chapter 4112, a supervisor/manager may be heldjointly and/or severally liable with her/his employer for discriminatoryconduct of the supervisor/manager in violation of R. C. 4112.”SeeGenaro v. Central Transport, Inc.,703 N.E.2d 782, 787-88 (Ohio 1999).Therefore, upon remand, Plaintiff’s claim of race discrimination andretaliation brought against Dr. Steger individually under Ohio Rev. Code§ 4112.99 may go forward. Because the Ohio court did not establish thata non-supervisor may be individually liable under Chapter 4112, the samedoes not hold true for Plaintiff’s Chapter 4112 claim brought against Dr.DISCUSSIONI. ELEVENTH AMENDMENT IMMUNITY DEFENSE& BARRED CLAIMSWe first address Defendants’ Eleventh Amendmentimmunity defense because this defense raises a question offederal jurisdiction.See Wilson-Jones v. Caviness, 99 F.3d203, 206 (6th Cir. 1996) (“As an ArticleIII restriction, stateimmunity is jurisdictional in the same sense as the completediversity requirement, . . . or the well-pleaded complaintrule.”) (citations omitted). Regarding Plaintiff’s claimsbrought against Defendants pursuant to 42 U.S.C. § 1981 and§ 1983, the University, as an arm of the State, is immune fromsuit under the Eleventh Amendment because it is well-settledthat a plaintiff is precluded from directly suing a State infederal court on these claims.See Hafford v. Seidner, 183F.3d 506, 512 (6th Cir. 1999) (recognizing that claims againsta State under § 1981 are barred by the Eleventh Amendment);see also Quern v. Jordan,440 U.S. 332, 350 (1979) (holdingthat § 1983 does not override a State’s Eleventh Amendmentimmunity). However, Plaintiff’s § 1981 and § 1983 claimsagainst Dr. Steger and Dr. Harrison in their individualcapacities are not barred by the Eleventh Amendment.Plaintiff’s claims brought against Dr. Steger and Dr.Harrison in their individual capacities under Title VII cannotgo forward, however, because such claims can only proceedagainst individuals who otherwise qualify as employers,which Plaintiff does not allege.2See Wathen v. General12Johnson v. Univ. of Cincinnati, et al.No. 98-3016Harrison individually.See Summerville v. Ross/Abbott Labs.,No. 98-3517, 1999 WL623786, at **4 (6th Cir. Aug. 10, 1999). BecausePlaintiff did not sue Dr. Harrison in his official capacity, Dr. Harrison isrelieved of liability under Title VII and Ohio Rev. Code § 4112.3Plaintiff sued Dr. Steger in his individual capacity with respect todamages, and in his official capacity with respect to Plaintiff’s claim forequitable injunctive relief. However, because Plaintiff now has a new jobwith similar pay and benefits, the equitable relief may no longer remainat issue, and Plaintiff now seeks money damages. Furthermore, Dr.Steger claims that he has no authority to grant Plaintiff equitable reliefand that he should be dismissed from suit. We leave these issues for thedistrict court to resolve on remand.4Our holdings as to Plaintiff’s claims brought under Title VII applywith equal force to his claims brought under Ohio Rev. Code § 4112.SeeLittle Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm.,575 N.E.2d1164,1167 (Ohio 1991) (“[W]e have determined that federal case lawinterpreting Title VII . . . is generally applicable to cases involving allegedviolations of R. C. Chapter 4112.”);see also supranote 2.Electric Co.,115 F.3d 400, 405 (6th Cir. 1997) (“[A]nindividual employee/supervisor who does not otherwisequalify as an ‘employer,’ may not be held personally liableunder Title VII.”);see alsoMorris v. Oldham County FiscalCourt,201 F.3d 784, 788 n.1 (6th Cir. 2000) (recognizingWathen’sholding). Plaintiff’s Title VII claims arepermissible against the University in federal courtnotwithstanding the Eleventh Amendment and against Dr.Steger in his official capacity.3See Alden v. Maine,527 U.S.706, 119 S. Ct. 2240, 2266-68 (1999);Fitzpatrick v. Bitzer,427 U.S. 445, 456 (1976) (finding that Congress abrogatedthe States’ sovereign immunity by enacting Title VII underthe Enforcement Clause, § 5, of the Fourteenth Amendment).In summary, Plaintiff is allowed to proceed with his claimsbrought under Title VII against the University and Dr. Stegerin his official capacity; and he is allowed to proceed with hisclaims brought under § 1981 and § 1983 against Dr. Stegerand Dr. Harrison in their individual capacities.4These claimswill be addressed in turn as follows.No. 98-3016Johnson v. Univ. of Cincinnati, et al.33discrimination action.See Avery Dennison Corp.,104 F.3dat 861;Zandersv.NationalR.R.Passenger Corp.,898 F.2d1127, 1135 (6th Cir. 1990). Although temporal proximityalone does not support an inference of retaliatorydiscrimination in the absence of other evidence, closeness intime between the filing with the EEOC and the adverseemployment action is relevant and may evince the employer’sintent.See Cooper v. City of North Olmstead,795 F.2d 1265,1272-73 (6th Cir. 1986) (“The mere fact that [the plaintiff]was discharged four months after filing a discrimination claimis insufficient to support an inference of retaliation.”). Inshort, in order to meet the final prong of hisprima faciecase,Plaintiff must “put forth some evidence to deduce a causalconnection between the retaliatory action and the protectedactivity [which requires] the court to draw reasonableinferences from that evidence, providing it is credible.”SeeAvery Dennison Corp.,104 F.3d at 861. We believe thatPlaintiff has met his burden of showing a temporal proximitybetween his filing of his EEOC complaint and histermination, coupled with other evidence, sufficient toestablish causation.For example, Plaintiff has shown that his first twoperformance evaluations had been strong prior to his filing ofthe EEOC charge. Plaintiff has also shown that theUniversity hospital resisted his efforts, particularly withrespect to the hiring of the SEO and the Vice-Chairman of theDepartment of Surgery, and that he was excluded from aretreat where many other human resource administrators metto discuss the hospital merger. Furthermore, the same daythat Dr. Steger informed the Cabinet of Plaintiff’s filing of hisEEOC complaint and that they may have to defend against it,Plaintiff requested a performance evaluation from Dr. Stegerand only in response to this request did Dr. Steger thenscrutinize Plaintiff’s performance and provide him with anegative evaluation. On January 16, 1996, Plaintiffresponded to Dr. Steger’s evaluation by sending Dr. Steger anevaluation accusing him of, among other things, retaliatingagainst Plaintiff for filing and EEOC claim. The next day, Dr.Steger terminated Plaintiff from his duties at the University.32Johnson v. Univ. of Cincinnati, et al.No. 98-3016advocacy right as an affirmative action representative and hisaffiliation with PACRRHD. Thus, Plaintiff could havereasonably believed that he was engaging in protected activitywhen he filed his EEOC complaint. Our holding in thisregard represents the first in this Circuit dealing with generaladvocacy rights under Title VII and § 1981 for a cabinet-levelaffirmative action/human resource vice-president.Accordingly, having established that Plaintiff was engagedin a protected activity when he filed his complaint with theEEOC, Plaintiff has satisfied the first step of the inquiry intohisprima faciecase of retaliation. In light of the followingevidence, which we view in the light most favorable toPlaintiff, we believe that he has met the next two parts of hisprima faciecase. On December 5,1995, Plaintiff filed acomplaint with the EEOC, alleging discrimination on thebasis of race and advocacy of minority and women’s rights.On December 20,1995, Dr. Steger announced to the Cabinetthat Plaintiff had filed the EEOC charge and the Defendantswould have to defend themselves against the charges. Thatsame day, Dr. Steger promised to deliver a letter to Plaintiffthat outlined his standing with the University. On January 9,1996, Dr. Steger sent Plaintiff a memorandum thatenumerated several problems with Plaintiff’s performance;then, on January 17, 1996, Plaintiff received his terminationnotice. As such, in addition to establishing that he engaged ina protected activity under Title VII by filing his EEOCcomplaint, Plaintiff also established that his filing was madeknown to the University by Dr. Steger’s announcement at theCabinet meeting, and that Plaintiff suffered an adverseemployment decision.In order to meet the final step of hisprima faciecase,Plaintiff must establish a causal link between his filing of theEEOC claim and his termination. A causal link may beshown through knowledge combined with closeness in timethat creates an inference of causation. In order make such ashowing, the plaintiff must produce sufficient evidence for areviewing court to infer that the employer would not havetaken the adverse action had the plaintiff not filed aNo. 98-3016Johnson v. Univ. of Cincinnati, et al.13II. STANDARD OF REVIEWWe review a grant of summary judgmentde novo.SeeDinsmore Instrument Co. v. Bomardier, Inc.,199 F.3d 318,320 (6th Cir. 1999).Summary judgment is appropriate wherethere exists no genuine issue of material fact and the movingparty is entitled to summary judgment as matter of law. Fed.R. Civ. P. 56(c). As the moving parties, Defendants in thiscase bear the burden of showing the absence of a genuineissue of material fact as to at least one essential element oneach of Plaintiff’s claims.See Celotex Corp. v. Catrett,477U.S. 317, 324 (1986). Plaintiff, as the non-moving party,must then present sufficient evidence from which a jury couldreasonably find for him.See Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 252 (1986). This test requires the Court todetermine “whether the evidence presents sufficientdisagreement to require submission to a jury or whether it isso one-sided that one party must prevail as a mater of law.”Id.at 251-52. In making this determination, we accept all ofPlaintiff’s evidence as true and draw reasonable inferences inhis favor.See National Enters., Inc. v. Smith,114 F.3d 561,563 (6th Cir. 1997).III. SECTION 1981 AND TITLE VII CLAIMSA. Section 1981 and Section 2000e-2: Race andNational Origin DiscriminationIn Count I of his complaint, Plaintiff alleges thatDefendants discriminated against him on the basis of race andnational origin in violation of Title VII, 42 U.S.C. § 2000e-2.Specifically, Plaintiff alleges that Defendants discriminatedagainst him because of his efforts to insure that the Universitycomplied with its affirmative action policies, and because ofhis advocacy on behalf of women and minorities. In CountIV of his complaint, Plaintiff alleges that Defendants violatedhis right to be free from discrimination and retaliation in themaking and enforcement of contracts on the basis of race, andfor his promotion of minorities and women, in violation of 42U.S.C. § 1981.14Johnson v. Univ. of Cincinnati, et al.No. 98-30165The elements ofprima faciecase as well as the allocations of theburden of proof are the same for employment claims stemming from TitleVII and § 1981.See, e.g., St. Mary’s Honor Ctr. v. Hicks,509 U.S. 502(1993).A plaintiff may establish a claim of discrimination either byintroducing direct evidence of discrimination, or by provingcircumstantial evidence which would support an inference ofdiscrimination.See Kline v. Tennessee Valley Auth.,128 F.3d337, 348 (6th Cir. 1997). “The direct evidence and thecircumstantial evidence paths are mutually exclusive; aplaintiff need only prove one or the other, not both.”Id.Under the direct evidence approach, once the plaintiffintroduces evidence that the employer terminated him becauseof his race or other protected status, the burden of persuasionshifts to the employer to prove that it would have terminatedthe plaintiff even had it not been motivated by discrimination.See Manzur v. Diamond Shamrock Chemicals Co.,29 F.3d1078, 1081 (6th Cir. 1994) (citingPrice Waterhouse v.Hopkins,490 U.S. 228, 244-45 (1989)).Under the circumstantial evidence approach, the familiarMcDonnell Douglas-Burdinetriparte test is employed.SeeMcDonnell Douglas Corp. v. Green,411 U.S. 792 (1973), aslater clarified by,Texas Dep’t of Community Affairs v.Burdine, 450 U.S. 248 (1981). This paradigm requires theplaintiff to establish aprima faciecase of discrimination.SeeMcDonnell Douglas,411 U.S. at 802. To establish aprimafaciecase of discrimination, a plaintiff must show that 1) heis a member of a protected class; 2) he was qualified for hisjob and performed it satisfactorily; 3) despite hisqualifications and performance, he suffered an adverseemployment action; and 4) that he was replaced by a personoutside the protected class or was treated less favorably thana similarly situated individual outside his protected class.5See id.;Mitchell v. Toledo Hosp.,964 F.2d 577, 582 (6th Cir.1992).If the plaintiff is able to do so, a mandatorypresumption of discrimination is created and the burden shiftsto the defendant to “articulate some legitimate,nondiscriminatory reason for the employee’s rejection.”Id.No. 98-3016Johnson v. Univ. of Cincinnati, et al.31opposition clause, the district court found that Plaintiff didnot hold a good faith belief that he was engaging in protectedactivity when he filed his EEOC complaint, and thatPlaintiff’s claim on this issue thus failed as a matter of law.The district court reasoned that Plaintiff filed his claim withthe EEOC as a protective measure to insure the security of hisjob – because he was aware that Dr. Steger was not happywith the manner in which Plaintiff handled the 925negotiations – and not because he reasonably believed that hewas being discriminated against. Once again, we disagreewith the district court.In reaching its erroneous conclusion, the district court failedto liberally construe Plaintiff’s participation clause claim andinstead improperly resolved it as an issue of fact; specifically,the district court improperly determined Plaintiff’s motive andgood faith in filing the charge. The district court’s conclusionis contrary to our decision inBooker:The “exceptionally broad protections” of theparticipation clause extends to persons who have“participated in any manner” in Title VII proceedings.Pettway v. American Cast Iron Pipe Co.,411 F.2d 998,1006 (5th Cir. 1969). Protection is not lost if theemployee is wrong on the merits of the charge,Womackv. Munson,619 F.2d 1292, 1298 (8th Cir. 1980),cert.denied, 450 U.S. 979, 101 S. Ct. 1513, 67 L. Ed. 2d 814(1981), nor is protection lost if the contents of the chargeare malicious or defamatory as well as wrong.Pettway,411 F.2d at 1007. Thus, once activity in question isfound to be within the scope of the participation clause,the employee is generally protected from retaliation.Booker,879 F.2d at 1312.Even if the district court had some basis for viewingPlaintiff’s EEOC complaint as Plaintiff’s way of protectinghimself, this does not necessarily imply that Plaintiff did notbelieve that he suffered retaliation for his advocacypriortothe 925 negotiations. Plaintiff could have reasonably believedthat he had a viable discrimination claim on the basis of his30Johnson v. Univ. of Cincinnati, et al.No. 98-3016opposition clause through his claims that he opposedDefendant’s violations of Title VII, that Defendant knew ofPlaintiff’s opposition, and that Plaintiff’s opposition wascausally related to his termination.See Walborn v. ErieCounty Care Facility,150 F.3d 584, 588-89 (6th Cir. 1998).To fully dispose of the remaining inquires under theMcDonnell Douglasframework, we must also determinewhether Defendants offered a legitimate, nondiscriminatoryreason for Plaintiff’s dismissal and whether Plaintiff can showthat the reasons were a mere pretext for retaliatorydiscrimination. Defendants offered the reasons outlined inDr. Steger’s memorandum sent to Plaintiff on January 9,1996, wherein Dr. Steger evaluated Plaintiff’s performance,as a non-exhaustive list of reasons for Plaintiff’s termination;however, Defendants contend that the primary reasons thatPlaintiff was terminated were his handling of the 925negotiations and his overall poor administration of hisdepartment. In response, Plaintiff offered depositiontestimony which countered all of Defendants’ alleged reasonsfor Plaintiff’s discharge, as well as evidence that otheremployees feared cooperating with the investigation intoPlaintiff’s termination because they anticipated reprisals.After careful review of the record, we hold that Plaintiff hascreated an issue of fact for the jury as to whether Defendants’proffered reasons for Plaintiff’s discharge were merelypretextual by suggesting that Defendants’ justificationspossibly have no basis in fact or are insufficient to explain hisdischarge, and are not the true reasons for Plaintiff’stermination. We therefore reverse the district court’s grant ofsummary judgment to the University and Dr. Steger in hisofficial capacity on Plaintiff’s claim brought under theopposition clause of Title VII.2. The Participation ClauseTo establish a claim of retaliation under the participationclause, Plaintiff must make aprima faciecase by showingthat Defendants discharged him because he filed a claim withthe EEOC. As with Plaintiff’s claim brought under theNo. 98-3016Johnson v. Univ. of Cincinnati, et al.15If the defendant carries this burden, then the plaintiff mustprove that the proffered reason was actually a pretext to hideunlawful discrimination.Id.The plaintiff may establish thatthe proffered reason was a mere pretext by showing that 1) thestated reasons had no basis in fact; 2) the stated reasons werenot the actual reasons; and 3) that the stated reasons wereinsufficient to explain the defendant’s action.See Wheeler v.McKinley Enters.,937 F.2d 1158, 1162 (6th Cir. 1991). “Areason cannot be proved to be ‘a pretext for discrimination’unless it is shown both that the reason was false, and thatdiscrimination was the real reason.”St. Mary’s Honor Centerv. Hicks,509 U.S. 502, 515 (1993).Here, the district court found that Plaintiff’s claim failedunder either the direct or circumstantial evidentiary pathwaysbecause Plaintiff failed to show that he was a member of aprotected group. The district court held that Plaintiff’s claimsfailed as a matter of law because Plaintiff “postur[ed] hisprotected status, not as a member of a racial minority, butrather as a person who advocates on behalf of women andminorities.” The district court also held that Plaintiff’s claimsfailed on these counts because as a high-level affirmativeaction official whose job responsibilities include advocatingminority rights, Plaintiff did not engage in protected activitywhen he engaged in such advocacy. In other words, thedistrict court held that Plaintiff’s claims fell prey to summaryjudgment because Plaintiff could not claim protected statusunder § 1981 or § 2000e-2(a) only for his advocacy of womenand minorities. We disagree. This holding is based on anunmitigated assumption: that for a high-level affirmativeaction official to have standing to sue under § 2002e-2(a) or§ 1981, it is necessary that the affirmative action official beblack – or of some other recognized protected group – andthat he allege discrimination against himself because of hismembership in a recognized protected group. Thisassumption is contrary to express Congressional intent behindthe enactment of Title VII and § 1981, as well as binding caselaw.16Johnson v. Univ. of Cincinnati, et al.No. 98-3016Section 2000e-2(a) of Title VII provides in relevant part asfollows:It shall be an unlawful employment practice for anemployer –(1) to fail or refuse to hire or to discharge anyindividual, or otherwise to discriminate against anyindividual with respect to his compensation, terms,conditions, or privileges of employment, because of suchindividual’s race, color, religion, sex, or national origin. . . .42 U.S.C. § 2000e-2(a) (1994). Section 1981 provides inpertinent part that all persons shall have the same right “tomake and enforce contracts,” which thereby “includes themaking, performance, modification, and termination ofcontracts, and the enjoyment of all benefits, privileges, terms,and conditions of the contractual relationship.” 42 U.S.C.§ 1981 (1994).It is an established principle that Congress’ primary concernin enacting the prohibition against racial discrimination inTitle VII of the Civil Rights Act of 1964 was the plight of theAfrican American in our economic society.See United SteelWorkers of Am. v. Kaiser Aluminum & Chemical Co.,443U.S. 193, 201 (1979) (citing 110 Cong. Rec. 6548 (1964)(remarks of Sen. Humphrey) (stating that Title VII was“triggered by a Nation’s concern over centuries of racialinjustice and intended to improve the lot of those who had‘been excluded from the American dream for so long’”). It isalso well-established that affirmative action programs, whichwere born out of Title VII legislation, are an accepted meansof correcting past and preventing future race discrimination inthe workforce both in the public and private sector.See id.at204. Furthermore, the Supreme Court has long recognizedthat § 1981, originally enacted as part of the Civil Rights Actof 1866, was intended to uproot the institution of slavery andto eradicate all of its badges, incidents, and vestiges.SeeJones v. Mayer,392 U.S. 409, 422-37 (1968) (finding thatbased upon the legislative history of the Civil Rights Act ofNo. 98-3016Johnson v. Univ. of Cincinnati, et al.29manner. Furthermore, in a letter dated September 21, 1995,sent by Plaintiff to Dr. Steger regarding Defendant’s desire towaive advertising for the Vice-Chairman position, Plaintiffcomplained that “the apparent underutilization of minoritiesand women at the University Hospital and Medical Collegedemonstrates the lack of commitment or intent to create anequal playing field for qualified candidates, or thedevelopment of a mentorship program which would supporta safe learning environment for non-whites.” UnlikeBookerv. Brown & Williamson Tobacco Co. Inc.,where the plaintiffwas contesting a single decision made by his employer in aletter which he sent to his employer’s human resourcedepartment, Plaintiff in this case was opposing Defendant’sdiscriminatory hiring conduct as a whole.See879 F.2d at1312-13 (recognizing that the lawfulness of the employmentpractice must be broadly construed, so that the personopposing an apparently discriminatory practice does not bearthe risk that practice is in fact lawful);see also supranote 7.One example of Defendants’ discriminatory hiring practicewhich Plaintiff opposed was Defendants’ decision not toadvertise for the Vice-Chairman position.Accordingly, having established that he opposed conductwhich he reasonably believed to be unlawful, and thatDefendant was aware of Plaintiff’s opposition, Plaintiff alsoprovided evidence to show that his opposition was causallyrelated to his discharge. For example, Plaintiff’s complaintsled to a reply memoranda from Dr. Steger wherein hecriticized Plaintiff’s character and performance, andapproximately one month after Plaintiff filed his charge ofdiscrimination with the EEOC, Dr. Steger informed Plaintiffthat he was being immediately removed from his position atthe University.See, e.g., EEOC v. Avery Dennision Corp.,104 F.3d 858, 861 (6th Cir. 1997);Moon v. TransportDrivers, Inc.,836 F.2d 226, 229 (6th Cir. 1987);see alsodiscussioninfraPart III.B.2. discussing the causal connectionbetween Plaintiff’s filing of his EEOC complaint and histermination in reference to his claim brought under theparticipation clause. Thus, Plaintiff has demonstrated aprimafaciecase of retaliatory discrimination under Title VII’s28Johnson v. Univ. of Cincinnati, et al.No. 98-3016by anyone and it may be made to a co-worker, newspaperreporter, or anyone else about alleged discrimination againstoneself or others; the alleged discriminatory acts need not beactually illegal in order for the opposition clause to apply; andthe person claiming retaliation need not be the personengaging in the opposing conduct.See EEOC ComplianceManual(CCH) ¶ 8006;see also See Booker,879 F.2d at1312-13 (holding that “[a] person opposing an apparentlydiscriminatory practice does not bear the entire risk that it isin fact lawful; he or she must only have a good faith beliefthat the practice is unlawful”);Keys v. U.S. Welding,Fabricating & Mfg., Inc.,No. CV91-0113, 1992 WL 218302,at *5 (N.D. Ohio Aug. 26, 1992) (noting that “[u]nder§ 704(a) of Title VII, [the plaintiff] needed only a ‘good faithbelief’ that the company practice about which he wascomplaining violated Title VII; it is irrelevant whether theallegations are ultimately determined to violate Title VII”).Therefore, it logically follows that the district court’sconclusion, that as a high-level affirmative action officialPlaintiff could not claim protected status under the oppositionclause for his advocacy on behalf of women and minorities,runs counter to the broad approach used when considering aclaim for retaliation under this clause, as well the spirit andpurpose behind Title VII as a broad remedial measure. Byextending the scope ofHolden,the district court allows for anemployer to retaliate against the person best able to opposethe employer’s discriminatory practices — the “high-levelaffirmative action official” — without fear of reprisal underTitle VII. Indeed, the individual who has contracted toadvocate on behalf of women and minorities has not therebycontracted to be retaliated against for his advocacy.In addition, the actions taken by Plaintiff in response tohiring decisions which he felt were discriminatory and not inline with the A-900 process were sufficient to constituteopposition under Title VII. For example, Plaintiff sent lettersto Dr. Steger voicing his objections to the hiring of Mr. Cohenand the Vice-Chairman of the Department of Surgery on thegrounds that these individuals were hired in a discriminatoryNo. 98-3016Johnson v. Univ. of Cincinnati, et al.171866, the broad language of the Act was not “a mere slip ofthe legislative pen”).Recently, inTetro v. Popham,this Court recognized TitleVII’s broad reach, and held as a matter of first impression inthis Circuit that “Title VII [was designed] to protectindividuals who are the victims of discriminatory animustowards third persons with whom the individuals associate.”See173 F.3d 988, 994 (6th Cir. 1999). Relying upon theEleventh Circuit’s decision inPar v. Woodmen of the WorldLife Ins. Co.,791 F.2d 888, 890 (11th Cir. 1986), where itwas held that a white individual had standing and had stateda viable cause of action under Title VII for discriminationbased upon an interracial marriage, theTetrocourt found thata white employee had standing and had stated a viable causeof action against his former employer under Title VII wherethe white employee was discharged because his child wasbiracial.See Tetro,173 F.3d at 994. The Court reasoned that“[a] white employee who is discharged because his child isbiracial is discriminated against on the basis of his race, eventhough the root animus for the discrimination is a prejudiceagainst the biracial child.”Id.The Court based its reasoningon Title VII’s broad remedial purpose and the fact that thestatute is worded such that it “simply prohibits discrimination‘because of such individual’s race’[;] [t]here is no mention ofthe words ‘directly’ or ‘indirectly’ in the statute.”Id.at 995.Thus, the Court went on to hold that Title VII protectsindividuals who are the victims of invidious discriminationtowards third persons with whom the individual associates.Id.at 994.Simply put, this Court has now spoken that inorder to state a cognizable claim under Title VII, the plaintiffhimself need not be a member of a recognized protected class;he need only allege that he was discriminated on the basis ofhis association with a member of a recognized protected class.See id.;see also Troy v. Suburban Management Corp.,No.89-1282, 1990 WL 97490, at **5 (6th Cir. July 13, 1990);Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d581, 589 (5th Cir. 1998) (finding as a matter of firstimpression that Title VII proscribes discrimination inemployment against a woman for her relationship with a18Johnson v. Univ. of Cincinnati, et al.No. 98-3016black man),vacated and reinstated in part en banc, 182 F.3d333 (5th Cir. 1999).Similarly, inWinston v. Lear Siegler, Inc.,558 F.2d 1266,1270 (6th Cir. 1997), this Court addressed as a matter of firstimpression, “the issue of whether or not the white plaintiff inthis action has standing to sue his former employer under§ 1981 for discharging him in alleged retaliation for plaintiff’sprotesting the alleged discriminatory firing of a black coworker . . . .” In holding that the white plaintiff did in facthave standing to sue under such circumstances, the Courtnoted that although the white plaintiff “was not fired becauseof his race, it was a racial situation in which he becameinvolved that resulted in his discharge from his employment,id.at 1268, and that Congress’ intent behind the enactment of§ 1981 – to eradicate the badges and incidents of slavery –were best served by such a holding.Id.at 1270;see Alizadehv. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986)(“§ 1981 provides a cause of action to a white spouse whoalleges that he was discriminated against in employmentbecause of his marriage to a nonwhite.”)Therefore, based upon this well-settled state of the law, itis clear that Plaintiff need not have alleged discriminationbased upon his race as an African American in order to satisfythe protected status requirement of his claims. Indeed, inlight of this Court’s holding inTetroandWinston, the factthat Plaintiff has not alleged discrimination because ofhisrace is of no moment inasmuch as it was a racial situation inwhich Plaintiff became involved – Plaintiff’s advocacy onbehalf of women and minorities in relation to Defendant’salleged discriminatory hiring practices – that resulted inPlaintiff’s discharge from employment.See Tetro,173 F.3dat 994-95;Winston,558 F.2d at 1268;see also Parr,791 F.2dat 892 (holding that “[w]here a plaintiff claims discrimination[in a Title VII action] based upon an interracial marriage orassociation, he alleges, by definition, that he has beendiscriminated against because of his race”). Althoughobviously not anticipated by the district court’s flawedreasoning, it is clear that a Caucasian high-level affirmativeNo. 98-3016Johnson v. Univ. of Cincinnati, et al.278Pursuant to the Supreme Court’s directive, the EEOC’sinterpretation of Title VII is to be given “great deference” by the courts.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 insupport of the Court’s holding);Ladd v. Sertoma HandicappedOpportunity Program, Inc.,917 F. Supp.766, 767 (N.D. Okla. 1995)(finding that “[a]lthough not binding on this Court, the EEOC’s positionon a subject squarely within its field of expertise is significant”).against employer retaliation for opposing any practice that theemployee reasonably believes to be a violation of Title VII.The Equal Employment Opportunity Commission (“EEOC”)has identified a number of examples of “opposing” conductwhich is protected by Title VII, including complaining toanyone (management, unions, other employees, ornewspapers) about allegedly unlawful practices; refusing toobey an order because the worker thinks it is unlawful underTitle VII; and opposing unlawful acts by persons other thanthe employer — e.g., former employers, union, and coworkers.EEOC Compliance Manual,(CCH) ¶ 8006.8TheEEOC has qualified the scope of the opposition clause bynoting that the manner of opposition must be reasonable, andthat the opposition be based on “a reasonable and good faithbelief that the opposed practices were unlawful.”Id.In otherwords, a violation of Title VII’s retaliation provision can befound whether or not the challenged practice ultimately isfound to be unlawful.Id.Moreover, the person claimingretaliation need not be the person who engaged in theopposition, such that “Title VII . . . prohibit[s] retaliationagainst someone so closely related to or associated with theperson exercising his or her statutory rights that it woulddiscourage that person from pursuing those rights.”Id.In short, the only qualification that is placed upon anemployee’s invocation of protection from retaliation underTitle VII’s opposition clause is that the manner of hisopposition must be reasonable. Of critical import here is thefact that there is no qualification on who the individual doingthe complaining may be or on the party to whom thecomplaint is made known — i.e., the complaint may be made26Johnson v. Univ. of Cincinnati, et al.No. 98-3016engaged in protected activity in reference to either claim. Wedisagree, and will address each of Plaintiff’s claims in turn.1. The Opposition ClauseIn conjunction with his allegations that his termination wasdiscrimination for his advocacy on behalf of women andminorities, Plaintiff similarly contends that the Universityretaliated against him for his advocacy efforts in oppositionto Defendants’ alleged unlawful employment practices. Thedistrict court found that Plaintiff’s claim failed at theinception because, as an affirmative action official, Plaintiffcould not have reasonably believed that the conduct he wasopposing was protected activity. Relying uponHolden v.Owens-Illinois,793 F.2d 745, 748-49 (6th Cir. 1986), thedistrict court reasoned that because attempts to implement anaffirmative action program that complies with ExecutiveOrder 11246 are not protected by Title VII, and becausePlaintiff is presumed to know the state of the law, it followsthat Plaintiff could not have reasonably believed that he wasopposing conduct that is protected under Title VII, and thathis claim brought under this clause therefore failed. We findthe district court’s application and extension ofHoldento thefacts of this case contrary to Title VII’s intent.As accurately argued by Plaintiff, the scope ofHoldenextends only to an employee who protests theimplementationof the affirmative action program; because Plaintiff protesteddiscriminationthat occurred in the hiring process, which wascontrary to law as well as the affirmative action program, hiscase falls beyondHolden’sreach. To hold otherwise wouldimproperly expand the scope ofHoldento include not onlythe employee who protests an employer’sfailure to implementan affirmative action program under Title VII, but also theemployee whoopposes discriminationthat occurs in thehiring process the likes of which the affirmative actionprogram was designed to correct and prevent.Furthermore, the fact that Plaintiff may have had acontractual duty to voice such concerns is of no consequenceto his claim. Under Title VII, an employee is protectedNo. 98-3016Johnson v. Univ. of Cincinnati, et al.19action official could bring a claim under § 1981 and § 2000e2(a) for discrimination based upon his advocacy on behalf ofminorities because the discrimination would be “because ofsuch individual’s race,” where the race of the minorities forwhich he was advocating would be “imputed” if you will tothe Caucasian high-level affirmative action official.SeeTetro,173 F.3d at 995.Furthermore, Plaintiff’s efforts to advocate for the A-900process in the face of Defendants’ alleged discriminatorypractice is clearly the type of conduct protected by § 1981 andTitle VII so as to provide Plaintiff standing. For example, inSullivan v. Little Hunting Park, Inc.,a case “which involve[d]an alleged discrimination against a Negro family in the use ofcertain community facilities,” the Supreme Court found thata Caucasian homeowner had standing to sue under 42 U.S.C.§ 1982 when he was expelled from a corporation organized tooperate a community park facility for his “advocacy” onbehalf of allowing an African-American male and his familyto participate in the park facilities.See396 U.S. 229, 231-37(1969). Specifically, inSullivan, the Court was faced with thefollowing facts:Little Hunting Park, Inc., is a Virginia nonstockcorporation organized to operate a community park andplayground facilities for the benefit of residents in anarea of Fairfax County, Virginia. A membership shareentitles all persons in the immediate family of theshareholder to use the corporation’s recreation facilities.Under the bylaws a person owning a membership shareis entitled when he rents his home to assign the share tohis tenant, subject to approval of the board of directors.Paul E. Sullivan and his family owned a house in thisarea and lived in it. Later he bought another house in thearea and leased the first one to T. R. Freeman, Jr., anemployee of the U.S. Department of Agriculture; andassigned his membership to Freeman. The board refusedto approve the assignment because Freeman was a Negro.Sullivan protested that action and was notified that hewould be expelled from the corporation by the board. A20Johnson v. Univ. of Cincinnati, et al.No. 98-3016hearing was accorded and he was expelled, the boardtendering him cash for his two shares.Id.at 234-35. When Sullivan and Freeman sued Little ParkHunting, Inc. under § 1981 and § 1982, the trial court deniedrelief to each petitioner.Id.In reversing the trial court’s decision, the Supreme Courtheld as to Freeman that he had stated a cause of action under§ 1982 inasmuch as he had paid a monthly rental forSullivan’s assignment of the membership share in LittleHunting Park, and therefore the transaction in which Freemanengaged was clearly a “lease” transaction protected by § 1982.Id.at 236-37. The Supreme Court reasoned as follows:The right to ‘lease’ is protected by § 1982 against theactions of third parties, as well as against the actions ofthe immediate lessor. Respondents’ actions in refusingto approve the assignment of the membership share inthis case was clearly an interference with Freeman’s rightto ‘lease.’A narrow construction of the language of§ 1982 would be quite inconsistent with the broad andsweeping nature of the protection meant to be affordedby § 1 of the Civil Rights Act of 1866, 14 Stat. 27, fromwhich § 1982 was derived.Id.at 237 (emphasis added) (citingJones v. Alfred H. MayerCo.,392 U.S. 409, 422-37 (1968)). The Supreme Court thenfound as follows regarding Sullivan’s standing to bring hisclaims:We turn to Sullivan’sexpulsion for the advocacy ofFreeman’s cause. If that sanction, backed by a statecourt judgment, can be imposed, then Sullivan ispunished for trying to vindicate the rights of minoritiesprotected by § 1982. Such a sanction would giveimpetus to the perpetuation of racial restrictions onproperty. That is why we said inBarrows v. Jackson,346 U.S. 249, 259 [(1953)], that the white owner is attimes ‘the only effective adversary’ of the unlawfulrestrictive covenant. Under the terms of our decision inNo. 98-3016Johnson v. Univ. of Cincinnati, et al.2542 U.S.C. § 2000e-3(a) (1994). Thus, this section prohibitsan employer from retaliating against an employee who has“opposed” any practice by the employer made unlawful underTitle VII; and prohibits an employer from retaliating againstan employee who has “participated” in any manner in aninvestigation under Title VII.See Booker v. Brown &Williamson Tobacco Co.,879 F.2d 1304, 1312 (6th Cir.1989);see also Morris v. Oldham County Fiscal Court,201F.3d 784, 791-92 (6th Cir. 2000). In Count V of hiscomplaint, Plaintiff claims that Defendants discriminatedagainst him because he “opposed” the hiring of individuals inconflict with the A-900 process; and that Defendantsterminated him in retaliation for Plaintiff’s “participation” infiling an EEOC claim.To establish a claim under either clause, Plaintiff must meetthe test of a slightly modifiedMcDonnell Douglasframeworkby showing that: 1) he engaged in activity protected by TitleVII; 2) this exercise of protected rights was known toDefendants; 3) Defendants thereafter took an adverseemployment action against Plaintiff, or Plaintiff wassubjected to severe or pervasive retaliatory harassment by asupervisor; and 4) there was a causal connection between theprotected activity and the adverse employment action orharassment.See Morris,201 F.3d at 792 (citingCanitia v.Yellow Freight Sys., Inc.,903 F.2d 1064, 1066 (6th Cir.1990)). If Plaintiff establishes a prima facie case under eitherclause, then the burden shifts to Defendants to articulate alegitimate, nondiscriminatory reason for Plaintiff’s discharge.Id.(citingMcDonnell Douglas, 411 U.S. at 802). Plaintiffmust then demonstrate that the proffered reason was not thetrue reason for the employment action – i.e., that the reasonwas a mere pretext for discrimination.Id.(citingBurdine,450 U.S. at 256).In this case, the district court found that Plaintiff’s claimsbrought under both the opposition clause and the participationclause of § 2000e-3(a) failed as a matter of law becausePlaintiff could not have held a good faith belief that he was24Johnson v. Univ. of Cincinnati, et al.No. 98-3016and equality in employment. The approach that is in line with§ 1981 and Title VII’s broad remedial purpose, as well as thecase law in support thereof, is to allow thejuryto decidewhether the high-level affirmative action official wasdiscriminated against for his “advocacy” on behalf of womenand minorities, irrespective of whether the advocacy was partof the official’s contractual duties. That is not to say thatevery job-related action undertaken by a high-levelaffirmative action official should be considered protectedconduct. However, when the action undertaken by the officialis the advocacy of hiring practices that do not discriminate onthe basis of race, sex, or ethnicity—such as Plaintiff’sadvocating a nondiscriminatory hiring practice in line with theA-900 process — the advocacy can indeed be consideredprotected conduct under Title VII and § 1981, and a juryshould decide whether a defendant employer hasdiscriminated or retaliated against the high-level affirmativeaction official for this advocacy.In every civil rights action it is the responsibility of the jurydetermine whether the defendant’s actions were invidious,pretextual, or improperly motivated. This case is no different.We therefore reverse the district court’s grant of summaryjudgment to the University and Dr. Steger in his officialcapacity on Plaintiff’s claims brought under § 2000e-2, and toDr. Steger and Dr. Harrison individually on Plaintiff’s claimsbrought under § 1981.B. Section 2000e-3(a): Retaliation Discriminationunder the Opposition & Participation ClausesSection § 2000e-3(a) provides in relevant part as followsIt shall be an unlawful employment practice for anemployer to discriminate against any of his employees. . . because [the employee] has opposed any practicemade an unlawful employment practice by thissubchapter, or because he has made a charge, testified,assisted, or participated in any manner in aninvestigation, proceeding, or hearing under thissubchapter.No. 98-3016Johnson v. Univ. of Cincinnati, et al.216In light ofSullivan, and in light ofWinston’sholding thatSullivanis applicable to § 1981 claims, the dissent’s contention that the majoritycannot point to any case where general advocacy of minority rights hasbeen found to violate either § 1981 or Title VII, is unfounded.Furthermore, as stated throughout this opinion, simply because it wasPlaintiff’s job to insure that Defendants did not engage in discriminatoryhiring practices the likes of which Defendants had previously been foundto employ, does not thereby immunize Defendants from retaliating againstPlaintiff for doing his job. Obviously, the dissent’s question as to howthe situation would differ if the advocacy was for a plan that failed tomeet the standard ofCroson v. City of Richmond, 478 U.S. 1016 (1986)is rhetorical. If an employee was retaliated against by his employer forBarrows, there can be no question but that Sullivan hasstanding to maintain this action.Sullivan,396 U.S. at 237 (emphasis added).Likewise, in the case at hand, Plaintiff alleged in hiscomplaint that he was sanctioned or punished when, amongother things, University officials “excluded him fromdecisions and policies affecting the West campus and theAlliance . . . because of Plaintiff’s support of affirmativeaction policies and minority hires[]” protected under Title VIIand § 1981.SeePlaintiff’s Amended Complaint, ¶ 21; J.A.at 100027. Plaintiff also alleged that he was sanctioned orpunished for his advocacy on behalf of female and minorityhires through his termination, or “expulsion” if you will, fromemployment by the University.See id., ¶ 28; J.A. at 100029.As inSullivan, if these “sanctions” were allowed to gounredressed, it would give impetus to the perpetuation ofracial and minority discrimination in hiring which Title VII ofthe Civil Rights Act of 1964, affirmative action programs, and§ 1981, were designed to prevent.See Kaiser Aluminum &Chemical Co.,443 U.S. at 201;Sullivan, 396 U.S. at 237;Winston,558 F.2d at 1270 (finding that the Supreme Court’sholding inSullivan, while directed to § 1982, was applicableto § 1981 inasmuch as both statutes were originally enactedas part of the Civil Rights Act of 1866 and were designedwith the same purpose in mind: “to uproot the institution ofslavery”)6.22Johnson v. Univ. of Cincinnati, et al.No. 98-3016speaking out on behalf of minorities, whether or not a plan met thestandard ofCroson, the employee may have a viable claim – irrespectiveof the employee’s race or ethnicity -- under § 1981 or Title VII.SeeSullivan v. Little House Park, Inc.,396 U.S. 229, 231-37 (1969);Tetro v.Popham, 173 F.2d 988, 994 (6th Cir. 1999);Winston v. Lear Siegler, Inc.,558 F.2d 1266, 1270 (6th Cir. 1997). Indeed, the Supreme Court foundSullivan’s “advocacy . . . for trying to vindicate the rights of minorities”to be protected conduct such that Sullivan had standing to sue.SeeSullivan, 396 U.S. at 237.Contrary to the district court’s assertion, Plaintiff’s statusas a high-level affirmative action official does not change thefact that his advocacy on behalf of women and minorities isprotected activity or that he is a member of a protected class.Simply because the employer has placed an individual in theposition of a high-level affirmative action officer andcontracted with the individual to advocate on behalf ofwomen and minorities to insure equality in employmentwithin the institution, does not thereby immunize theemployer from being held liable for illegally discriminatingagainst that individual for such advocacy. To hold otherwisewould allow an institution to contract with an individual forthe position of a “high level affirmative action official;” putinto place an allegedly nondiscriminatory hiring practice suchas the A-900 process; circumvent the hiring process againstthe express advocacy and advice of the affirmative actionofficial; and discriminate or retaliate against the affirmativeaction official for his advocacy, thus sending a message to theofficial that he either remain silent or be “punished.”Said differently, an employer inclined to engage ininvidious discrimination in the workplace could hire anaffirmative action official in order to convey the falseimpression that the employer is interested in eliminatingillegal discrimination from the workplace, and proceed toretaliate against the official secure in the knowledge that nolegal claim could be lodged against the employer for itsactions. Thus, to hold that a high-level affirmative actionofficial cannot bring a Title VII claim for discriminationbased upon his or her advocacy of women and minoritieswould be to invite stratagems designed to circumvent, andNo. 98-3016Johnson v. Univ. of Cincinnati, et al.237An example of such direct evidence offered by Plaintiff is takenfrom Plaintiff’s deposition testimony made in response to the question ofwhether Dr. Steger, in Plaintiff’s view, expressed race consciousness inmaking hiring decisions:During the search for the provost at the University, I madea recommendation to Dr. Steger that proactive consideration begiven to Dean Castenell; that based upon the candidates beingbrought into the University from outside that I felt DeanCastenell had more experience and would be more effective.Dr. Steger’s response was, “We already have two black vicepresidents. I can’t bring in a black provost.” My response was,“Dr. Steger, you’re the President of the University, and it’s myexpectation that you demonstrate the issues and concerns instaffing is that we get the best person available, not the fact thatyou’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 atthe University.”That was a very disturbing response, to me, for a presidentto be making to the Vice President of Human Resources, whenI had been charged always to ensure that we hire the best personpossible and that we always identify a diverse pool of candidatesand that we give full consideration to them based uponexperience, their expertise, and whether they would be able to dothe job or not.(J.A. at 100737-38.)indeed, to violate law which was designed to serve “as a spuror catalyst to cause ‘employers and unions to self-examineand to self-evaluate their employment practices and toendeavor to eliminate, so far as possible, the last vestiges ofan unfortunate and ignominious page in this country’s history. . . .’”Kaiser Aluminum & Chem. Corp.,443 U.S. at 204(quotingAlbemarle Paper Co. v. Moody,442 U.S. 405, 418(1975)).Therefore, having found that Plaintiff was indeed a memberof protected class, and that he proffered direct evidence thathe was discriminated against because of his advocacy, webelieve that a question of fact exists for the jury to decidewhether Defendants terminated Plaintiff out of adiscriminatory animus.7The district court’s approach to thismatter turns back the hands of time on the issue of civil rights