44 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

University’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.

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

JOHN B. JOHNSON,

Plaintiff-Appellant,

v.

UNIVERSITY OF CINCINNATI,

JOSEPH A. STEGER, andDONALD C. HARRISON,

Defendants-Appellees.

Appeal from the United St

for the Southern District of 

No. 96-00727—Sandra S. Bec

Argued: January 

Decided and Filed: 

Before: KENNEDY, DAUGHTR

Judges.

____________

COUNSE

ARGUED: Marc D. MeziboMEZIBOV & SCHWARTZ, CinciJohn B. Pinney, GRAYDON, Cincinnati, Ohio, for Appellees. 
2 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

Mezibov, 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 which

DAUGHTREY, 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 is

African 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, we AFFIRM in part, REVERSE in

No. 98-3016 Johnson v. Univ

The majority can point to no case w

general advocacy of minority rights ha§ 1981 or Title VII. What if the general to meet the standard of City of Richmon

469, 109 S. Ct. 706, 102 L.Ed.2d 854 (19

claim under the participation claushould be liberally construed and hclose proximity to his filing of complaints with respect to his perfextended period, I agree with the court erred in granting summary ju

Finally, I turn to plaintiff’s 

Amendment. While I am aware ohave held that discussions of affirof public concern, I do not think thspeaker is a high level affirmativcommunications are within the orgat the University, the plaintiff’s job of minorities. Technically, every wduring his tenure in this position cobecause of the nature of his job. In of this case, I do not think that the protections of the First Amendmehis speech was not integrally connconsidering whether an employee’First Amendment, this Supreme Coinquiry. First, the Court asks wpublic concern. If that questaffirmative, the next question iinterest in speaking outweighed tregulating his speech. See Connic

146, 103 S.Ct 1684, 1690, 75 L.Edv. Board of Educ., 391 U.S. 563, 5620 L.Ed.2d 811 (1968). In this cainquiry can be separated into two stmerge when the employee’s positioissues that normally would be of puplaintiff’s speech concerned the 
42 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

2When you come to the claim that Dr. Steger violated § 1981 because

of 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 the

Alliance 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 from Holden. 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 distinguish Holden by 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.2 Because the plaintiff’s

No. 98-3016 Johnson v. Univ

part, and REMAND the case bactrial.

BACKGRO

A. The University and its Affir

As a federal contractor, the Uni

certain affirmative action obligati1.40; Executive Order No. 11246. of, among other things, maintaininaction programs; analyzing the Univand sex; analyzing areas of underminorities; maintaining data regawomen and minorities; and anaUniversity’s employee selection pr

1.40; § 60-2.11(a); § 60-2.11(b); § 

In 1978, the Office of Federal 

Programs (“OFCCP”) investigated pay disparities among African AmUniversity; the OFCCP therefUniversity was in violation of its See 41 C.F.R. § 60-1.26. As a resuOFCCP entered into a ConciliatioUniversity agreed to implemendiscrimination against women procedures consisted of identifyincreating a list of new candidateensuring that the list included namminorities. If a non-minority male if women and minorities did not apthen the employing unit at the Univwritten reasons for the omissionsoffice was to approve or disapprova determination of whether sex oselection.

In an effort to comply with the m

Agreement regarding the UniverUniversity developed a form – kn
4 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

A-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 hiring

manager 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 in

1980, 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% of

No. 98-3016 Johnson v. Univsection 2000e-2 claims against the in his official capacity cannot surv

I also am at a loss as to how 

plaintiff’s § 1981 claim against Drcapacity. The plaintiff has preseHarrison influenced the Universidecision to relieve the plaintiff of this court, the plaintiff does not evhis § 1981 claim against Dr. Harrisargument on Dr. Steger’s role in hplaintiff chose this tactic because thwhich to find Dr. Harrison liable fbelieve that it is error for this cour§ 1981 claim against Dr. Harrison 

Plaintiff’s claims under § 1981 a

along with plaintiff’s retaliation cclause of Title VII, also fail becaestablish that he is a member of a the majority attempts to show that ithat an advocate for a minority whagainst is protected under Title VIthe majority’s analysis of our priflawed. I agree with the majopermitted to pursue claims of discadvocacy of another person’s rightthe individual is advocating upon individual or specific individuals wor Title VII rights have been violatbased on his advocacy of specific claims protected class status based When we extend protected class stplaintiff, we undermine the protecand the Constitution. Plaintiff’s cland its employees basically boils dothe implementation of an affirmatCircuit, in Holden v. Owens-IllinoCir. 1986), held that an employee status simply because the employee 
40 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

give 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 the McDonnell Douglas-Burdine test.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 his

No. 98-3016 Johnson v. Univthe technical staff, and 33% of the African Americans occupied executive/administrative stafprofessional/non-faculty staff. BaPACRRHD recommended a new caction initiative at the University wincreasing the number of minoritieThe PACRRHD also recommended level position to head the affirmaindividual selected for this positiothe president and have Cabinet-leresponsible for “following curfunctions, as well as the developolicies and diversity initiatives to quality of life.” In responsrecommendations, the Vice Presidand Human Relations (“VPHHRwherein the individual occupying tof both human resources and the aB. Plaintiff’s Role and Course 

University

In 1993, Dr. Steger recruited 

VPHHR following a national searcyear contract and began his duties 1993. Plaintiff was the second persthere was a period of time before Pthe position was unoccupied and permanent head. As a result, at the aboard, the AAO was in state of disa back log of A-900 forms that hatime the AAO was without a head, A-900 waivers. For example, therwaivers of the A-900 process froPlaintiff expanded the AAO, and hdirector in September of 1994. 

Plaintiff was troubled by wha

excessive number of waivers of t
6 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

1The OFCCP in fact conducted a second audit of the University

which 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.1

Throughout 1994 and 1995, Plaintiff became particularly

concerned 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 required

to 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. After

No. 98-3016 Johnson v. Univ

1In his brief to this court, the plain

review. His claims under Title VII, §1were couched in terms of his advocacy particular, his brief states the issues as fo

“2. Whether, for Mr. JohnsoU.S.C. §1981 claims, he had a prhe advocated minority rights.3. Whether, for Mr. Johnsonretaliation claim, the importancminority rights outweighed maintaining the operation of its 

In addition, his complaint to the EEOC s

The university employs me as tHuman Resources. The institutfrom performing my assignmauthorized for planning and opesystems for the east and west . . President Joseph Stegar tells me perform my executive level duti

__________________________

CONCURRING IN PART, DI

__________________________

KENNEDY, concurring in par

While I agree with the majority’s rissues and Dr. Johnson’s retaparticipation clause, I dissent frbecause I disagree with the majoritthe plaintiff’s claims. In particmajority’s analysis of the plaintifand § 1981. I also dissent from the plaintiff’s First Amendment claim

The majority holds that the 

evidence of the defendants’ ditestimony concerning University ofconsciousness during the hiring however, does not provide direct ediscrimination against the plaintiff minority rights. 1 Because plainti
38 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

disagree 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 the

contrary, 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., 429

U.S. at 287. We therefore reverse the district court’s ordergranting summary judgment to Dr. Steger and Dr. Harrisonindividually on this claim.

CONCLUSION

For the above-stated reasons, we AFFIRM the grant of

summary 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 brought under TitleVII. However, we REVERSE the grant of summary

judgment 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 alsoREVERSE any corresponding pendant state law claims andREMAND the matter for trial.

No. 98-3016 Johnson v. Univinterviewing all three candidates, favor of the African-American maloverall experience as well as the fato be the strongest of the three cwhite male was selected for the SEmajority of votes by the selection 1994 meeting attended by Dr. following the SEO selection, it would direct the search for the positions to become available at ththat efforts would be made to targpositions. Plaintiff sent a memorato Dr. Harrison detailing Plaintioutcome of the meeting.

In August of 1995, Dr. Harrison 

900 process to fill the position Department of Surgery for thSpecifically, Dr. Harrison requesteJames Hurst, a former member of faculty, without going through the knew and endorsed the former mabilities. Plaintiff sent a letter datDr. Steger protesting Dr. Harrisoprocess and questioning the Unproviding equal opportunities in Plaintiff’s protestations, Dr. Stewaiver at Dr. Harrison’s request.

A few months later, in Novemb

was negotiating with District 925 International Union (“925") anparticipated in the negotiations. Dsecretarial and support staff of the between the University and 925 renewal, and the critical issue dutuition remission; that is, the employees would have to reimbucost of tuition waivers granted by the employee failed to achieve a 
8 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

This issue was the final barrier to the University and 925reaching an agreement, and the University was prepared toaccept the cost of a strike if 925 did not agree to theUniversity’s terms.

Dr. Steger met with Plaintiff and Stephanie Echols, the

University’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 settlement

No. 98-3016 Johnson v. Univhis complaints and concerns to Cathe general public, is of no conseqmatter of Plaintiff’s complaints wapublic concern in this circuit — “general policy of affirmative actioChappel v. Montgomery County F131 F.3d 564, 579 (6th Cir. 1997) (for speech on matters of public concommunication of the speech to thin Rankin voiced her opinion abouconversation which was later rehowever, the Supreme Court fouthough internal, was nonetheless therefore protected because it invRankin, 483 U.S. at 386. The samcase.

Therefore, having found that Pla

of public concern, the next relevanconcerns comparing the Universityan efficient organization against PlPickering, 391 U.S. at 568. “In oon speech of public concern by a pspeech must impair discipline by suimpact on close working relationshigoal or mission of the employer, imthe speaker’s duties, or impair harmMeyers, 934 F.2d at 730.

Here, the district court found tha

was a matter of public concern, interest outweighed Plaintiff’s rigcontext, because Plaintiff’s verbUniversity’s failure to comply wit“causing a tremendous disruption to deliver its services.” (J.A. at 10based its conclusion on various ePlaintiff had been tying up employUniversity because of his protests failure to follow its affirmative a
36 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

contravention 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 to Rankin [v.

McPherson], not Connick [v. Myers].” Id. We then opinedas follows:

In Connick permissible employment action was taken as

a result of an internal office dispute about a transfer, andthe speech was concerned only with internal officepolicy. In Rankin the 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 in Rankin was in the form of an

opinion, made in a private conversation later reported tothe employee’s supervisor.

Id. The Meyers Court concluded that “speech about apolitically charged issue like affirmative action — whetherpro or con — should be considered a matter of publicconcern.” Id. at 730.

As in Meyers, Plaintiff’s speech was made known to his

supervisor, 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. See 934 F.2d at 730. The fact that Plaintiff directed

No. 98-3016 Johnson v. Univ

apparently did not escape the news was informed of the tentative settlemeeting with the deans. Dr. StePlaintiff had not reached him with and sent Plaintiff a letter dateadmonishing Plaintiff while cembarrassed this morning at a breathey asked me the terms of the 925 did not know they settled -- let a298.)

Because the Board of Trustees w

authorize the 925 settlement, DPlaintiff draft a summary of the sreview at its next meeting on Novereviewed the summary; however, itext of the agreement before theplanned to meet again on Decemeantime, apparently at Plaintifdepartment began programming ithe pay increases and back pareflected in the settlement. subsequently informed Dr. Steger twould be reflected on the Decedespite the Board’s lack of final appossible to reverse the computer Accordingly, Dr. Steger told the pthe checks as adjusted. On Decemunhappy with the terms of the settthe adjustments in the payroll ssettlement.

Plaintiff filed a complaint with 

Opportunity Commission (“EEOCalleging race and retaliatory diUniversity. Plaintiff claimed tparticularly Dr. Harrison, were dbecause of his race as an African Ahim to fully participate in Human Rto University Hospital. Plaintiff 
10 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

retaliated 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 a

memorandum 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, January

17, 1996, Dr. Steger sent Plaintiff a termination notice andremoved Plaintiff from his duties. Plaintiff filed the instantsuit on July 25, 1996.

No. 98-3016 Johnson v. Univ147. “Whether an employee’s spepublic concern must be determined context of a given statement, arecord.” Id. at 147-48.

If Plaintiff’s speech in this regar

public concern and thus protected, Plaintiff’s free speech interests interest in regulating his speech Pickering balancing test. See Pick

Plaintiff’s interests in speakinDefendants’ interests, then Plaintifhave been violated. See Dambrot F.3d 1177, 1186 (6th Cir. 1995). violation was a substantial oDefendants’ action against Plaintifevidence that they would have tabsence of his protected conduct, for the jury to decide. See Mt. HeaEduc. v. Doyle, 429 U.S. 274, 287 

In this case, the district court fo

on Defendants’ noncompliance wprogram to be a matter of public cofound that the University’s intereprocess without disruption outweigspeech. Although we agree wiPlaintiff’s speech regarding the Unwith the A-900 process was a madisagree that the University’s purPlaintiff’s right to free speech.

In Meyers v. City of Cincinnati, 

as an opinion concerning the genaction would be a matter of public concerning methods of impleme934 F.2d 726, 730 (6th Cir. 1991), m979 F.2d 1154 (6th Cir. 1992). Ththe title of “assistant fire chief in challegedly made statements w
34 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

Considering 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 opposition

clause, 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 OF

FIRST AMENDMENT RIGHTS

In Count VI of his amended complaint, Plaintiff brought a

claim 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 that

Defendants 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. at

No. 98-3016 Johnson v. Univ

2We note that the Ohio Supreme Co

for purposes of R. C. Chapter 4112, a sujointly and/or severally liable with her/hconduct of the supervisor/manager in vGenaro v. Central Transport, Inc., 703 NTherefore, upon remand, Plaintiff’s claretaliation brought against Dr. Steger indi§ 4112.99 may go forward. Because the Oa non-supervisor may be individually liabdoes not hold true for Plaintiff’s Chapter 

DISCUSSI

I. ELEVENTH AMENDMENT 

& BARRED CLAIMSWe first address Defendants

immunity defense because this defederal jurisdiction. See Wilson-J203, 206 (6th Cir. 1996) (“As an Aimmunity is jurisdictional in the sdiversity requirement, . . . or thrule.”) (citations omitted). Regbrought against Defendants pursua§ 1983, the University, as an arm of suit under the Eleventh Amendmenthat a plaintiff is precluded from federal court on these claims. SeF.3d 506, 512 (6th Cir. 1999) (recoa State under § 1981 are barred by tsee also Quern v. Jordan, 440 U.Sthat § 1983 does not override a Staimmunity). However, Plaintiff’s against Dr. Steger and Dr. Harcapacities are not barred by the E

Plaintiff’s claims brought aga

Harrison in their individual capacigo forward, however, because sucagainst individuals who otherwiwhich Plaintiff does not allege.2 
12 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

Harrison individually. See Summerville v. Ross/Abbott Labs., No. 98-3517, 1999 WL 623786, at **4 (6th Cir. Aug. 10, 1999). Because

Plaintiff 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 to

damages, 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 apply

with 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 supra note 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 also Morris v. Oldham County FiscalCourt, 201 F.3d 784, 788 n.1 (6th Cir. 2000) (recognizingWathen’s holding). Plaintiff’s Title VII claims arepermissible against the University in federal courtnotwithstanding the Eleventh Amendment and against Dr.Steger in his official capacity.3 See 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 claims

brought 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.4 These claimswill be addressed in turn as follows.

No. 98-3016 Johnson v. Univ

discrimination action. See Avery D

at 861; Zanders v. National R.R. P

1127, 1135 (6th Cir. 1990). Althalone does not support an discrimination in the absence of ottime between the filing with the employment action is relevant and intent. See Cooper v. City of North 1272-73 (6th Cir. 1986) (“The mwas discharged four months after fiis insufficient to support an infershort, in order to meet the final proPlaintiff must “put forth some evconnection between the retaliatory activity [which requires] the coinferences from that evidence, pro

Avery Dennison Corp., 104 F.3d Plaintiff has met his burden of shobetween his filing of his EEtermination, coupled with other establish causation.

For example, Plaintiff has sh

performance evaluations had been the EEOC charge. Plaintiff hUniversity hospital resisted his respect to the hiring of the SEO and Department of Surgery, and that retreat where many other human reto discuss the hospital merger. Fthat Dr. Steger informed the CabineEEOC complaint and that they may Plaintiff requested a performance eand only in response to this reqscrutinize Plaintiff’s performance negative evaluation. On Januresponded to Dr. Steger’s evaluatioevaluation accusing him of, amonagainst Plaintiff for filing and EEOSteger terminated Plaintiff from h
32 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

advocacy 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 engaged

in a protected activity when he filed his complaint with theEEOC, Plaintiff has satisfied the first step of the inquiry intohis prima facie case of retaliation. In light of the following

evidence, which we view in the light most favorable toPlaintiff, we believe that he has met the next two parts of hisprima facie case. 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 his prima facie case,

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 a

No. 98-3016 Johnson v. UnivII. STANDARD OF REVIEW

We review a grant of summary 

Dinsmore Instrument Co. v. Boma320 (6th Cir. 1999). Summary judgthere exists no genuine issue of maparty is entitled to summary judgmR. Civ. P. 56(c). As the moving pcase bear the burden of showing issue of material fact as to at leaseach of Plaintiff’s claims. See CeU.S. 317, 324 (1986). Plaintiff, must then present sufficient evidenreasonably find for him. See Ander477 U.S. 242, 252 (1986). This determine “whether the evidedisagreement to require submissioso one-sided that one party must pId. at 251-52. In making this deterPlaintiff’s evidence as true and drahis favor. See National Enters., In563 (6th Cir. 1997).III. SECTION 1981 AND TITL

A. Section 1981 and Sectio

National Origin Discrimin

In Count I of his complain

Defendants discriminated against hnational origin in violation of Title Specifically, Plaintiff alleges that against him because of his efforts to complied with its affirmative actiohis advocacy on behalf of women IV of his complaint, Plaintiff allegehis right to be free from discriminmaking and enforcement of contracfor his promotion of minorities and U.S.C. § 1981.
14 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

5The elements of prima facie case as well as the allocations of the

burden 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 by

introducing direct evidence of discrimination, or by provingcircumstantial evidence which would support an inference ofdiscrimination. See Kline v. Tennessee Valley Auth., 128 F.3d

337, 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) (citing Price Waterhouse v.Hopkins, 490 U.S. 228, 244-45 (1989)).

Under the circumstantial evidence approach, the familiar

McDonnell Douglas-Burdine triparte 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 a prima facie case of discrimination. SeeMcDonnell Douglas, 411 U.S. at 802. To establish a prima

facie case 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.5

See id.; Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). If the plaintiff is able to do so, a mandatory

presumption of discrimination is created and the burden shiftsto the defendant to “articulate some legitimate,nondiscriminatory reason for the employee’s rejection.” Id.

No. 98-3016 Johnson v. Univopposition clause, the district counot hold a good faith belief that he activity when he filed his EEPlaintiff’s claim on this issue thus The district court reasoned that Plthe EEOC as a protective measure job – because he was aware that with the manner in which Plnegotiations – and not because he rwas being discriminated against. with the district court.

In reaching its erroneous conclus

to liberally construe Plaintiff’s parinstead improperly resolved it as an the district court improperly determgood faith in filing the charge. The is contrary to our decision in Book

The “exceptionally broad 

participation clause extends “participated in any manner” in Pettway v. American Cast Iron 1006 (5th Cir. 1969). Protecemployee is wrong on the merits v. Munson, 619 F.2d 1292, 129denied, 450 U.S. 979, 101 S. Ct(1981), nor is protection lost if thare malicious or defamatory as w411 F.2d at 1007. Thus, once found to be within the scope of the employee is generally protec

Booker, 879 F.2d at 1312.

Even if the district court had 

Plaintiff’s EEOC complaint as Plhimself, this does not necessarily ibelieve that he suffered retaliation the 925 negotiations. Plaintiff coulthat he had a viable discrimination 
30 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

opposition 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 the

McDonnell Douglas framework, we must also determine

whether 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 has

created 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 Clause

To establish a claim of retaliation under the participation

clause, Plaintiff must make a prima facie case by showing

that Defendants discharged him because he filed a claim withthe EEOC. As with Plaintiff’s claim brought under the

No. 98-3016 Johnson v. UnivIf the defendant carries this burdeprove that the proffered reason waunlawful discrimination. Id. The pthe proffered reason was a mere prestated reasons had no basis in fact; not the actual reasons; and 3) thainsufficient to explain the defendanMcKinley Enters., 937 F.2d 1158, reason cannot be proved to be ‘a punless it is shown both that the rdiscrimination was the real reason.v. Hicks, 509 U.S. 502, 515 (1993

Here, the district court found th

under either the direct or circumstabecause Plaintiff failed to show thprotected group. The district court failed as a matter of law because protected status, not as a member rather as a person who advocates minorities.” The district court also failed on these counts because aaction official whose job responsibminority rights, Plaintiff did not enwhen he engaged in such advocdistrict court held that Plaintiff’s cjudgment because Plaintiff could under § 1981 or § 2000e-2(a) only fand minorities. We disagree. Thunmitigated assumption: that for action official to have standing to § 1981, it is necessary that the affblack – or of some other recognizthat he allege discrimination againmembership in a recognized assumption is contrary to express Cthe enactment of Title VII and § 19law.
16 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

Section 2000e-2(a) of Title VII provides in relevant part as

follows:

It shall be an unlawful employment practice for an

employer –

(1) to fail or refuse to hire or to discharge any

individual, 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 concern

in 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 Steel

Workers 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 of

No. 98-3016 Johnson v. Univmanner. Furthermore, in a letter dsent by Plaintiff to Dr. Steger regarwaive advertising for the Vice-Chcomplained that “the apparent undand women at the University Hosdemonstrates the lack of commitmequal playing field for qualifdevelopment of a mentorship proga safe learning environment for nov. Brown & Williamson Tobacco Cwas contesting a single decision mletter which he sent to his emdepartment, Plaintiff in this case wdiscriminatory hiring conduct as 1312-13 (recognizing that the lawfpractice must be broadly constropposing an apparently discriminathe risk that practice is in fact lawfOne example of Defendants’ discwhich Plaintiff opposed was Deadvertise for the Vice-Chairman p

Accordingly, having established 

which he reasonably believed tDefendant was aware of Plaintiff’provided evidence to show that hirelated to his discharge. For examled to a reply memoranda from criticized Plaintiff’s character approximately one month after Pdiscrimination with the EEOC, Drthat he was being immediately remthe University. See, e.g., EEOC v104 F.3d 858, 861 (6th Cir. 19Drivers, Inc., 836 F.2d 226, 229 discussion infra Part III.B.2. discusbetween Plaintiff’s filing of his termination in reference to his participation clause. Thus, Plaintiffacie case of retaliatory discrim
28 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

by 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’s

conclusion, 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 of Holden, the district court allows for an

employer 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 to

hiring 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 discriminatory

No. 98-3016 Johnson v. Univ1866, the broad language of the Athe legislative pen”).

Recently, in Tetro v. Popham, t

VII’s broad reach, and held as a mthis Circuit that “Title VII [windividuals who are the victims towards third persons with whom See 173 F.3d 988, 994 (6th Cir. Eleventh Circuit’s decision in Par Life Ins. Co., 791 F.2d 888, 890 was held that a white individual ha viable cause of action under Tibased upon an interracial marriagea white employee had standing and of action against his former emplothe white employee was dischargbiracial. See Tetro, 173 F.3d at 994

“[a] white employee who is dischbiracial is discriminated against on though the root animus for the disagainst the biracial child.” Id. The 

on Title VII’s broad remedial purstatute is worded such that it “simp‘because of such individual’s race’the words ‘directly’ or ‘indirectly’ Thus, the Court went on to holindividuals who are the victims otowards third persons with whom Id. at 994. Simply put, this Couorder to state a cognizable claim unhimself need not be a member of a rhe need only allege that he was dishis association with a member of a rSee id.; see also Troy v. Suburban 89-1282, 1990 WL 97490, at **5 Deffenbaugh-Williams v. Wal-Ma581, 589 (5th Cir. 1998) (findimpression that Title VII prosemployment against a woman fo
18 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

black man), vacated and reinstated in part en banc, 182 F.3d333 (5th Cir. 1999).

Similarly, in Winston 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, it

is 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 in Tetro and Winston, the factthat Plaintiff has not alleged discrimination because of hisrace 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.3d

at 994-95; Winston, 558 F.2d at 1268; see also Parr, 791 F.2d

at 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 affirmative

No. 98-3016 Johnson v. Univ

8Pursuant to the Supreme Cou

interpretation of Title VII is to be given “See Griggs v. Duke Power Co., 401 U.S. 

173 F.3d at 994 (relying upon the EEOCsupport of the Court’s holding); LaOpportunity Program, Inc., 917 F. Sup

(finding that “[a]lthough not binding on ton a subject squarely within its field of eagainst employer retaliation for oppemployee reasonably believes to bThe Equal Employment Opportunihas identified a number of exampwhich is protected by Title VII, anyone (management, unions, newspapers) about allegedly unlawobey an order because the worker Title VII; and opposing unlawful the employer — e.g., former emworkers. EEOC Compliance Man

EEOC has qualified the scope of noting that the manner of oppositiothat the opposition be based on “a belief that the opposed practices wwords, a violation of Title VII’s refound whether or not the challenfound to be unlawful. Id. Moreretaliation need not be the persopposition, such that “Title VII . against someone so closely related person exercising his or her statdiscourage that person from pursu

In short, the only qualification 

employee’s invocation of protectiTitle VII’s opposition clause is opposition must be reasonable. Of fact that there is no qualification on the complaining may be or on complaint is made known — i.e., th
26 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

engaged in protected activity in reference to either claim. Wedisagree, and will address each of Plaintiff’s claims in turn.

1. The Opposition Clause

In conjunction with his allegations that his termination was

discrimination 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 upon Holden 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 of Holden to the

facts of this case contrary to Title VII’s intent.

As accurately argued by Plaintiff, the scope of Holden

extends only to an employee who protests the implementationof the affirmative action program; because Plaintiff protesteddiscrimination that occurred in the hiring process, which wascontrary to law as well as the affirmative action program, hiscase falls beyond Holden’s reach. To hold otherwise would

improperly expand the scope of Holden to include not only

the employee who protests an employer’s failure to implementan affirmative action program under Title VII, but also theemployee who opposes discrimination that 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 a

contractual duty to voice such concerns is of no consequenceto his claim. Under Title VII, an employee is protected

No. 98-3016 Johnson v. Univaction official could bring a claim 2(a) for discrimination based upon minorities because the discriminasuch individual’s race,” where the which he was advocating would bthe Caucasian high-level affirma

Tetro, 173 F.3d at 995.

Furthermore, Plaintiff’s efforts 

process in the face of Defendanpractice is clearly the type of conduTitle VII so as to provide Plaintiff Sullivan v. Little Hunting Park, Incan alleged discrimination against a certain community facilities,” the a Caucasian homeowner had stand§ 1982 when he was expelled from operate a community park facilibehalf of allowing an African-Amto participate in the park facilities. 

(1969). Specifically, in Sullivan, thfollowing facts:

Little Hunting Park, Inc., i

corporation organized to operate playground facilities for the bearea of Fairfax County, Virginientitles all persons in the imshareholder to use the corporatioUnder the bylaws a person ownis entitled when he rents his homhis tenant, subject to approval oPaul E. Sullivan and his family area and lived in it. Later he bouarea and leased the first one to employee of the U.S. Departmassigned his membership to Freeto approve the assignment becauSullivan protested that action awould be expelled from the corp
20 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

hearing 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 Court

held 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) (citing Jones 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’s expulsion for the advocacy of

Freeman’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 in Barrows 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 in

No. 98-3016 Johnson v. Univ42 U.S.C. § 2000e-3(a) (1994). Tan employer from retaliating agai“opposed” any practice by the empTitle VII; and prohibits an employan employee who has “participatinvestigation under Title VII. Williamson Tobacco Co., 879 F1989); see also Morris v. Oldham F.3d 784, 791-92 (6th Cir. 200complaint, Plaintiff claims that against him because he “opposed” conflict with the A-900 proceterminated him in retaliation for Plfiling an EEOC claim.

To establish a claim under either 

the test of a slightly modified McDoby showing that: 1) he engaged in VII; 2) this exercise of protectDefendants; 3) Defendants theemployment action against Plasubjected to severe or pervasive rsupervisor; and 4) there was a causprotected activity and the adverharassment. See Morris, 201 F.3d Yellow Freight Sys., Inc., 903 F1990)). If Plaintiff establishes a prclause, then the burden shifts to Dlegitimate, nondiscriminatory reasoId. (citing McDonnell Douglas, 4must then demonstrate that the protrue reason for the employment acwas a mere pretext for discrimina450 U.S. at 256).

In this case, the district court fo

brought under both the opposition cclause of § 2000e-3(a) failed as Plaintiff could not have held a go
24 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

and 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 the jury to decide

whether 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 jury

determine 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 Discrimination

under the Opposition & Participation Clauses

Section § 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. 98-3016 Johnson v. Univ

6In light of Sullivan, and in light of 

is applicable to § 1981 claims, the dissencannot point to any case where general abeen found to violate either § 1981 Furthermore, as stated throughout this oPlaintiff’s job to insure that Defendants dhiring practices the likes of which Defendto employ, does not thereby immunize DefPlaintiff for doing his job. Obviously, tthe situation would differ if the advocacmeet the standard of Croson v. City of Ri

is rhetorical. If an employee was retaliat

Barrows, there can be no questistanding to maintain this action

Sullivan, 396 U.S. at 237 (emphas

Likewise, in the case at hand

complaint that he was sanctioned other things, University officiadecisions and policies affecting tAlliance . . . because of Plaintiffaction policies and minority hires[]and § 1981. See Plaintiff’s Amenat 100027. Plaintiff also alleged punished for his advocacy on behhires through his termination, or “eemployment by the University. Se

As in Sullivan, if these “sanctiounredressed, it would give impetracial and minority discrimination the Civil Rights Act of 1964, affirm§ 1981, were designed to preventChemical Co., 443 U.S. at 201; SWinston, 558 F.2d at 1270 (finding holding in Sullivan, while directed to § 1981 inasmuch as both statutas part of the Civil Rights Act of with the same purpose in mind: “slavery”)6

.
22 Johnson v. Univ. of Cincinnati, et al. No. 98-3016

speaking out on behalf of minorities, whether or not a plan met thestandard of Croson, the employee may have a viable claim – irrespective

of the employee’s race or ethnicity -- under § 1981 or Title VII. See

Sullivan 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 status

as a high-level affirmative action official does not change thefact that his advocacy on behalf of women and minorities is

protected 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 in

invidious 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, and

No. 98-3016 Johnson v. Univ

7An example of such direct eviden

from Plaintiff’s deposition testimony madwhether Dr. Steger, in Plaintiff’s view, emaking hiring decisions:

During the search for the provo

a recommendation to Dr. Steger that given to Dean Castenell; that based brought into the University from Castenell had more experience and w

Dr. Steger’s response was, “We 

presidents. I can’t bring in a black p“Dr. Steger, you’re the President of expectation that you demonstrate tstaffing is that we get the best person you’ve got three senior black offi“Faculty would kill me if I would particularly with us already having tthe University.”

That was a very disturbing respo

to be making to the Vice President oI had been charged always to ensure possible and that we always identify a and that we give full consideratexperience, their expertise, and wheththe job or not.

(J.A. at 100737-38.)indeed, to violate law which was dor catalyst to cause ‘employers anand to self-evaluate their emplendeavor to eliminate, so far as poan unfortunate and ignominious pa. . . .’” Kaiser Aluminum & Chem(quoting Albemarle Paper Co. v. M(1975)).

Therefore, having found that Pla

of protected class, and that he prohe was discriminated against becbelieve that a question of fact exwhether Defendants terminatediscriminatory animus.7 The distr

matter turns back the hands of time