NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0419n.06 No. 10-3358 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

RUDOL PH AL EXAND ER, Plaintiff-Appellant,

v. OHI O STATE UNI VERSI TY COL L EGE OF SOCI AL WORK, ET AL ., Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) On Appea l from the United States District Court for the Southern District of Ohio

Be fore : BO GGS and KETH L EDGE, Circuit Judges; and COL L I ER, District J udg e *

PER CURI AM. Plaintiff Dr. Rudolph Alexander s u ed T h e Ohio State University (“O SU”); the OSU Colle ge o f S o ci al Work (“the College ”); OSU’s Associate Vice President for Human Resource s; and the College ’s dean (collec tively “De fenda nts”) for rac e discrimination and reta liation, in violation of Title VI I , 42 U.S.C. §§ 2000e-2( a)( 1) and 2000e-3( a), and violation of the Equal Protection Clause of the Four teenth Amendment, under 42 U.S.C. § 1983. Alexander claims 1 that Def endants forc ed him to resig n as Direc tor of the College ’s underg raduate prog ram and g ave

The Honor able Judge Curtis L . Colli er, Chief United States District J udg e for the Easter

n * District of Tenne ssee, sitting by desig nation. Be cause liability

for discr imination under 42 U.S.C. § 1983 is coterminous with li ability 1 under Title VI Iwhen a

plaintiff alleg es disparate treatment by a state e mploy er, Grano v. De p’t of Dev. of Columbus , 637 F.2d 1073, 1082 ( 6th Cir. 1980), our ana ly sis of Alexander’s Title VI I claims applies to his § 1983 discrimination claims.No. 10-3358

Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. him poor evaluations and small pay raises beca use of his rac e and in reta liation for protec ted activity , and that the dean filed a re t al i at o ry internal complaint ag ainst him. He also claims that he was denied due proce ss be cause he was not timely provided with re quested public re cords. Ale x ander challeng es t h e district court’s g rant of summary judgme nt to Def endants on all of his claims. He further argues that the court abused its discretion in failing to rule on his motion to compel discovery of the de an’s c omputer har d drives. We first hold that th e d i s t rict court did not abuse its discretion in denying Alexander’s discovery motion. Second, we aff irm the g rant of summary judgme nt to Def endants on Alexander’s discrimination and reta liation claims beca use, with respe ct to eac h claim, Alexander has either failed to make out a prima fac ie case or failed to show that Def endants’ proff

ere d rea sons for their actions

wer e prete x tual. Finally , we aff irm the g rant of summary judgme nt for Def endants on Alexander’s due proc ess claim, bec ause he was not denie d meaning ful ac cess to the c ourts.

I Alexander is an Afric an-A merica n tenure d profe ssor of Social Work. He joined the College

as an assistant profe ssor in 1989 and was awa rded tenure in 1995. He was appointed Direc tor of the College ’s Ba chelor of Science and Social Work (“B SSW ”) Prog ram in 200 0

. S h o rt l y afte r the Colle ge h i red a new dean in 2005, Alexander raised conce rns about the dean’ s sug g estion that students sign a pledg e to support the National Association of Social Workers’ Code of Ethics, which includes a statement that social worke rs should not discriminate on the basis of sexual orientation. Alexander told the dean in July 2005 that requiring relig ious students to “ acc ept[] homosex uality ”

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Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. might be a civil-rig hts violation. Alexander then attempted to investigate possible pay inequities in the College , suspecting he m i gh t b e a victim of sex discrimination. I n late August 2005, he reque sted rec ords of fa culty salarie s, a re quest that, ac cording to Alexander, “upse t” the dea n. Alexander alleg es that the dean beg an eng ag ing in rac e discrimination and reta liation ag ainst him in Marc h 2006, when he was asked t o step down as BSSW Direc t o r. T h en , as a result of his May 2006 annual evalua t i o n , he rec eived the smallest raise among the College ’s profe ssors. Alexander wrote the dean an email on J uly 3, 2006, contending that, in conducting the evaluations, the dean “divided t h e fac ulty into those [he] perc eived to be supportive of [hi m] and those [he] believe[d] not t o be supportive,” favor ing the perc eived supporte rs. I n September 2006, Alexander reque sted the results of an ano n y m o u s s u rvey of College fac ulty conducte d by the Offic e of Human Resource s. He believed the response s might reve al evidenc e of discrimination and intimi dation by the dean. OSU’s Associate Vice President for Human Resource s informed him that the orig inal survey s had been destroy ed. Alexander was later g iven the ag g reg ated results, and he eventua l l y rec eived, during the course of this litigation, a sprea dsheet of the individual r esponses. Alexander contends, howeve r, that the data was altere d. On September 4 and 14, 2006, Alexander complained to the OSU Provost’s Offic e that the dean was en gaging in rac ial discrimination and was biased toward homosex uals. OSU’s Human Resource s depar

tment r ece ived the complaint and issued a finding on Dec ember

19, 2006, that no discrimination occur

red. On Dec ember 1, 2006, Alexander filed a char g e of discrimination with the Oh i o Civil Rights Commi ssion (“O CRC ”) and the Equal Employ ment Opportunity Commi s s i o n (“EE OC”), alleging that his raise in 2006 discriminated ag ainst him based on sex and rac e and in - 3 -No. 10-3358

Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. reta liation for re q u es ting public rec ords. On Dec ember 2, 2006, Alexander sent an email to the Associate Vice President for Human Resource s and OSU’s leg al counsel calling the dean a liar and saying, “ Every

time I see [him] , Iwant to punch him in the fa ce a nd this is put ting it mildly .” Alexander alleg es that fur t h er discrimination and reta liation occur red when, in 2007, the College issued specia l one-time merit-base d salary adjustments. Alexander’s raise—one of the smallest in the College —was based on a merit rating deter mined by a committee comprised of the dean and three profe ssors. Alexander contends that his merit rating was discriminatory beca use he

was not g iven the highe st possible score for scholarship by any committee member. He also alleg es that two committee members, who wer e also full profe ssors, rate d him poorly so as to incre ase their

own salarie s beca

use all full profe ssors wer e allocate d raises from a fix ed pool. On April 3, 2007, Alexander filed another char g e wi t h t h e OC RC and the EEOC, claiming that the 2007 salary adjustment discriminated ag ainst him on the basis of rac e and w as re taliatory

. Alexander also claims that he was g iven no annual raise in 2007 beca use of discrimination and reta liation. Alexander failed to submit a dossier, which—ac cording to the University ’s Policies and Procedur es Handbook—wa s require d to rec eive a raise. He contends, howeve r, that he did not wish to have the dean evaluate him and that his reque st for an alternative evaluator should have been g rante d, even thoug h it was made a fter the dossier-submission deadline. I n 2007, Alexander s en t em ail s and a memorandum to the dean and sever al OSU administrators calling the dean a liar and acc using him of rac ism. Alexander showed his students a slide display ing the College fac ulty ’s n am es , races, and salarie s, claiming that his salary was an

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Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. example of racism. I n class, he ref err ed to th e d ea n as “ga y ” and a “lepr echa un.” He also told at least two OSU fac ulty that the dean had AI DS and intimi dated fac ulty by “g etting in people’ s fac es.” The dean filed a c o mp la in

t ag ainst Alexander with OSU’s Human Resource s office on Marc h 5, 2008, alleg ing that Alexander had hara ssed him based on his sexual orientation. The office issued

a repor t on J anuar

y 30, 2009, finding that Alexander had eng ag ed in unprofe ssional conduct and threa tening him with dis ciplinary action if such c onduct continued. Al ex an der filed this suit ag ainst Def endants for rac e discrimination and reta liation on October 26, 2007, subsequently amending his complaint to include alleg ations that OSU destroy ed public rec ords in violation of the Due Pr o ce s s C l au s e and § 1983, and that the dean’ s internal complaint was made in reta liation for Alexander’s protec ted activity i n fi l ing this suit. During discovery , Alexander reque sted copie s o f an y emails sent by the dean ref ere ncing Alexander. Alexander believed t hat s ome emails wer e not produc ed and f iled a motion to compel the “mirror imag ing” of t he dean’s computer hard drives in o rd er to look for any emails that might have been deleted. The district court g rante d summary judgme nt for Def endants on Marc h 12, 2010, decla ring the Motion to Com pel “moot.” Ale x ander timely appea led.

I I We revie w de novo a district court’s order g ranting summary judgme nt. Sullivan v. Oregon Ford, Inc. , 559 F.3d 594, 594 ( 6th Cir. 2009). Summ ary judgme nt is appropriate if the plea dings, depositions, answe rs to interrog atories, aff idavits, and admissions on file demonstrate “that there is

no g enuine issue as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.”

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Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. Fe d. R. Civ. P. 56(a)

. In revie wing the decisi o n , we view all evidenc e in the l ight most favor able to the nonmoving party

. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). “I f the defe ndant succe ssfully demonstrates, afte r a rea sonable period of discovery , that the plaintiff cannot produce sufficie nt evidenc e bey ond the bare alleg ations of the complaint to support

an essential element of his or her case , summary judgme nt is appropr iate.” Combs v. Int’l Ins. Co. , 354 F.3d 568, 576 ( 6th Cir. 2004) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986)).

A. Alexander’ s Motion to C ompel Discover y Alexander c laims that the district court er red in fa iling to r

ule on his motion t o compel the “mirror imag ing” of the dean’ s hard dr ives. By decla ring the motion “moot,” the court eff ectively denied it. We revie w a district court’s ruling on a discovery matter for abuse of discretion, Audi AG

v. D’Amato , 469 F.3d 534, 541 (6th Cir. 2006), reve rsing only if the court committed “a clea r err or of judg ment, such as apply ing the incorre ct leg al standar d, misapply ing the corr ect leg al standar d,

or rely ing upon clea

rly err oneous finding s of fac t.” Jones v. Ill. Cent. R.R. Co. , 617 F.3d 843, 850 (6th Cir. 2010). Her e, the district court made no clear er ro r o f judgme nt. A party may move for an order compelling discovery if the oppos ing party fails t o m ak e a d i sclosure require d by Fe dera l Rule of Civil Procedur e 26(a ). F ed. R. Civ. P. 37( a)( 3)(B ). I n response to A lexander’s discove ry reque st, t h e dean sear ched his email acc ount and produce d numerous emails. The district court ord er ed Alexander to produce evidenc e, in support of his motion, that rele vant email s were missing and could be rec overe d by cloning the dean’ s hard drives. Alexander responde d by contending that the

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Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. dean did not write down the specific sear ch terms u s ed and admitted deleting emails, and that Def endants failed to produce an email the dean sent to him

. Def endants counter ed that any deleted emails wer e spam or mass mailings, and that if the alleg edly -missing email in fac t exis ted, Alexander would have a copy of it. We conclude that the district cour t d i d n o t rely on clea rly err oneous fi n d i n gs o f fact i n holding that Def endants complied with Rule 26(a) , and that it did not abuse its discretion by

denying A lexander’s motion to compel.

B. A lexander’s Rac e Discr imination C laims Claims of rac e discrimination are evaluated under the fra mework established in McD onnell Douglas Corp. v. Gree n , 411 U.S. 792, 801–05 (1973). To proce ed on his rac e-discr imination claim, Alexander must establish a prima fac ie case of disc ri m i nation by showing that “‘( 1) he

. . . was a member of a protec ted class; (2) he

. . . s u ff er ed an adver se employ

ment action; (3) he

. . . was qualified for the position; and (4) he

. . . was repla ced by someone outside the protec ted class or was tr e a te d d if f e r e n tl y th a n s im il a r ly

- s ituated, non-protec ted employ ees.’ ” W right v. Murray Gua r

d , I n c . , 455 F.3d 702, 707 ( 6th Cir. 2006). I f a pla intiff makes out a pr ima fac ie ca se, the burde n shifts to the defe ndant to produce a leg itimate, non-discriminatory rea son for the adver se action. McD onnell Douglas , 41 1 U. S

. at 8 0 2–03. Once a defe ndant does so, the plaintiff must produce evidenc e showing that the proff

ere d rea son is prete x tual. Id. at 804. Pretext may be demonstrated by showing by a preponde ranc e of the evidenc e “(1) that the proff ere d rea sons ha d no basis in f act, (2) that the proff ere d rea sons did not actua lly motivate [t he action], or (3) that they wer e insufficient to motivate

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Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. [t he action].” Manzer v. Dia mo n d S h a mr ock Chems. Co ., 29 F.3d 1078, 1084 (6th Cir. 1994) (empha sis omit ted). Alexander claims that he was discriminated ag ainst beca use of his rac e when he wa s : (1) repla ced as BSSW Direc tor; (2) g iven a low annual raise in 2006; (3) g iven a low 2007 specia l salary adjustment; and (4) g iven no annual raise in 2007. Wit h respe ct to eac h of these claims, Alexander has failed to ma

ke out a prima fac ie case or has offe red insufficient evidenc e to allow a rea sonable fac t-finder to c onclude that the le g itimate non-discriminatory rea sons proffe red by

Def endants for these a ctions were prete x ts for ra ce disc rimination. 1. Replace ment as B SSW Direc tor Alexander wa s replac ed as B SSW Direc tor by an Af rica n-Amer ican f

emale pr ofessor. H e cannot establish a p ri m a fac ie case of discrimination beca use he was not “re place d by someone outside the protec ted class.” W right , 455 F.3d at 707. Alexander argues that the dean repla ced him with an Afr ican Ame rica

n in order to f

oil his lawsuit. But he prese nts no evidence to support this

asser tion, and we se e no re ason to depa rt from the McD onnell Douglas analy sis.

2. The 2006 Annua l Raise Alexander’s 2006 raise was based on his 2005–06 annual evaluation, conducte d by the dean. For College administrators, of which Alexander was one of three , the dean assig ned weig hts of 50% for administrative work and a combined 50% for scholarship, teac hing, an d service

. Nonadministrative fac ulty wer e evaluated only on the latter cate g ories. Fa culty rec eived rating s rang ing from “no merit” t o “ex tra merit” in eac h cate g ory . Alexander was rate d “mer it” for scholarship, - 8 -No. 10-3358

Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. teac hing, and service and “par tial merit” for administration. The perc entag e raise that resulted was the smallest in the College

. Alexander has failed to make out a prima fa cie c ase w ith respec t to the 2006 r aise. He has not demonstrated that he was trea ted di ff er entl y from si milarly -situated faculty

. The dist rict court found that Alexander was simil arly situated only to the other administrative fac ulty , and conclude d that he failed to prese nt evidenc e that he was evaluated differ ently than the other two profe ssors in the College who serve d as administrators. Alexander’s small raise resulted primarily from his poor rating for administration, and Def endants offe red various rea sons—which we discuss below—that the dea n was unha

ppy with Alexander’s pe rfor

mance as B SSW Direc tor. Non-a dminist rative fac ulty may be considere d simil arly situ at ed t o Alexander for the purposes of assessing his rating s for scholarship, teac hing, and service , but he has also failed to show t hat he was trea ted differ ently from those fac ulty

. Alexander argues that his score s in th es e cate g ories should have been highe r, pointing to a number of rea sons he felt that the dean evaluated

cer tain white fac ulty more favor ably

. But his asser tions of differ ential trea tment essentially amount to disag ree ment with the dean’ s choice of criter ia. For example, Alexander contends that the dean should not have relied on his below-a vera g e student evaluation score s in assessing h i s teac hing, should have cre dited him f or developing a new course even though he submitt ed no rea ding list or sy llabus for the co u rs e as p ar t of his dossier, and should have g iven him more service cre dit for serving on committees, even though such service was required of the BSSW Direc tor. I n sum, Alexander has not established that the evaluation criter ia wer e applied differ ently to him than to non-Afr ican- Americ an fac ulty

. Moreove r, he has not demonstrated that, even wer e he awa rded the - 9 -No. 10-3358

Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. additional cre dits he fee ls he deser ved, his perf

ormanc e in scholarship, teac hing, and service would entitle him to a rating highe r than “ merit.” 3. The 2007 Spec ial Salary Adjustment Alexander next alleg es that he suffe red discrimination when he rec eived only a small specia l salary adjustment in 2007. Her e, too, he fails to make out a prima fac ie case by showing that he was trea ted differ ently fr o m simil arly situated fac ulty

. He has prese nted no evidenc e that the panel applied the evaluation criteri a d i ff er en t ly to him than to the other full profe ssors with whom his

score s wer e compar ed to deter mine his raise. Rather, h e d i s agre es with the decision to awa rd lower- ranking fac ulty highe r perc entag e raises than senior fac ulty beca use the former’s s al aries lag g ed further behind those at ot h er i nstitut ions. Alexander also contends that he deser ved the highe st possible rating for scholarship, which no panel member gav e h i m . But he has not demonstrated that other fu l l p ro fessors rec eived highe r rating s for equally worthy scholarship. Finally , Alexander alleg es that two panel members rate d him poorly in order to allocate themselves

a g reater share of the pool rese rved for full profe ssors. This, howeve r, cuts ag ainst his claim that the siz e of his ra ise was the pr oduct of ra cial discrimination.

4. The 2007 Annua l Raise Alexander submitt ed no dossier for the 2006–07 aca demic y ear . As a result, he rec eived no raise. This was in acc ordanc e with the policy stated in the University ’s Handbook. Alexander points out that his reque st for a late review by someone other

than t he dean was denied, contending that, in this respe ct, h e was trea ted differ ently from another profe ssor whose reque st for a differ ent - 10 -No. 10-3358

Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. evaluator was g rante d. But he has not demonstrated that the other profe ssor was simil arly situated to him, beca

use he prese nted no evidenc e th at s h e t o o failed to submit a dossier on time. Thus, Alexander c annot establish a pr ima fac ie ca se of discr imination with respect to the 2007 ra ise.

C. Alex ander ’s Retaliation Claims Title VI I prohibits an employ er from discriminating ag ainst an employ ee beca use the employ ee “has opposed any prac tice made an unlawfu l em p l oy ment prac tice by [Tit le VI I ], or beca use [ the employ ee] has m ad e a ch ar ge, testi fied, assisted, or participated in any manner in an investigation, pro ce ed i n g, or hear ing under [Tit le VI I ].” 42 U.S.C. § 2000e-3( a). We analy ze Al exander’s reta liation claim under the McD onnell Douglas framework. A prima fac ie case o f reta liation require s Alexander to “esta blish that (1) he

. . . eng ag ed in protec ted activity , (2) the employ er knew of the exercise of the protec ted rig ht, (3) an ad verse employ ment action was subsequently taken ag ainst [hi m] , and (4) there was a causa l connect i o n b et wee n the protec ted activity and the adver se employ ment action.” Nisw ander v. Cincinnati Ins. Co. , 529 F.3d 714, 720 (6th Cir. 2008). T o es tablish causation, Alexander must “prof fer evidenc e sufficie nt to raise the infere nce that [hi s] protec ted activity was the likely rea son for the adver se action.” EEOC v. Ave ry Dennison Corp. , 104 F.3d 858, 861 (6th Cir. 1997) (interna l citations and quotation marks omitted). I f he m ee t s t h i s showing , the burden shifts to Def endants to “ar

ticulate some leg itimate, nondiscriminatory rea son” fo r t h e ac t i on. McD onnell Douglas , 411 U.S. at 802. I f they do so, Alexander must “demonstrate by a prepondera nce of the evidence that the pro ff er ed rea son was a

mere prete x t for [retaliation] .” Abbott v. Crown Motor Co., Inc. , 348 F.3d 537, 542 (6th Cir. 2003).

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Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. 1. Removal as B SSW Direc tor Alexander alleg es that he was remove d as BSSW Direc tor in reta liation for reque sting salary information t h at m i gh t reve al sex discrimination. We assume without deciding that this reque st constituted protec ted activity

. See Nisw ander , 529 F.3d at 719–20, 725 (stating that Title VI I ’s opposition clause protec ts an employ ee’ s “re asonable ” opposition to unlawful discrimination). Def endants g ive various rea sons for Alexander’s remova l from the position, citing his lack of prog ress in developing an underg raduate honors prog ram, a social justice minor, and new course s, tasks that Alexander acknow ledg es wer e priorities for the dean. Alexander argues that these rea sons

wer e pretext ual and challeng es t he Dean’s judgment that he was an i neff ective administrator. He contends that he missed no require d d ea d l ines and was g iven no written war ning of perf

ormanc e problems. He also arg

ues that the dean g ave “shifting rea sons” for Alexander’s dismiss al—furthe r evidenc e that those rea sons wer e prete x tual. See Cicero v. Borg-W arner Auto., Inc. , 280 F.3d 579, 592 (6th Cir. 2002) (“A n employ er’ s chang ing rationale for making an adver se employ ment decision can be evidenc e of pr etext.”). Alexander has failed to raise an issue of materia l fac t as to whether the proff ere d rea sons for his removal we re a prete x t for retaliation. He has not shown that they “had no ba sis in fact,” “ did not actua lly motivate” the dean’ s decision, or wer e “not sufficie nt to motivate” that decision. Manzer , 29 F.3d at 1084. Rather, his own deposition testimony indicates th at h e h ad m ade littl e prog ress on the dean’ s prioritized tasks at the time of his remova l. Although Alexander was g iven

no written war

ning, the University Handbook does not indicate that prior written war ning is require d befo re re m o v ing a profe ssor from an administrative position. Alexander’s “shifting rea sons” - 12 -No. 10-3358

Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. argument also fai l s. The fac t that a defe ndant offe rs “shifting justifications” for an adver se employ ment action may somet imes be evidenc e of prete x t. Cicero , 280 F.3d at 592. “When the justification for an adver se employ ment action chang es during li tigation, that inconsistency raises

an issue whether the proff ere d rea son truly motivated the d ef en d an t s’ decision.” Ibid

. But an infere nce of prete x t is not warra nted her e. At the t ime of Alex ander ’s removal, the dean cited his fa i lure to make prog ress on the prioritized tasks as the rea son he was being repla ced. I n h i s deposition, the dean listed a litany of additional rea sons for his dissatisfac t i o n with Alexander’s perf ormanc e as BSSW Direc tor. Even so, the dean consistently emphasized Alexander’s failure to make prog ress on the tasks. I n other words, the proff ere d rea sons did not chang e during the course of this liti g ation.

2. The 2006 a nd 2007 Evaluations Alexander contends that he rec eived a poor annual evaluation in 2006 in reta liation for opposing the dean’ s sug g estion that students sign a pledg e not to discriminate on the basis of sexual orientation and for reque sting information reg arding fac ulty salarie s. He asser ts that he was g iven only a small 2007 salar

y adjustment in retaliation for f iling an E EOC char g e in Dec ember 2006. Wit h respe ct to the 2006 evaluation, Ale x ander has failed to establish a prima fac ie case of

re t al i at ion beca

use he has not “prof

fer [ed] evidenc e sufficie nt to raise the infere nce that [ h i s ] protec ted activity was the likely rea son for the adver se action.” Ave ry Dennison Corp. , 104 F.3d at 861. Retaliation m ay be inferr ed from “tempora l proxi mity ” if “an adver se employ ment action

occur s very

close in time afte r an e mploy er le arns of a protec ted ac tivity .” Mick ey v . Zeidler Tool

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Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. & Die Co ., 516 F.3d 516, 525 (6th Cir. 2008). “B ut wher e some time el ap ses betwee n when the employ er lear

ns of a protec ted activity and the subsequent adver se employ ment action, the employ ee must couple temporal proxi mity with other evide nce of

reta liatory

conduct to esta

blish causality .” Ibid

. Her e, Al ex an d er ’s all eg ed protec ted activity occur red in J uly and Aug ust of 2005. His 2005–06 annual e valuation did not occur until May 2006. This c ourt has held that an infe renc e of reta liation may be established based on temporal proxi mity of two or three months. See Sanford v. Main St. Baptist Church Manor, Inc ., 327 F. App’x 587, 600–01 (6th Cir. 2009) (two months); Singfield v

. Akron Metro. Hous. Auth. , 389 F.3d 555, 556 ( 2004) (thre e months). The nine-month g ap here is too long to permit the infere nce, absent some other evidenc e. That additional evidenc e of reta liatory conduct could include more favor able trea tment of simil arly -situated profe ssors who did not eng ag e in protec ted activity

. See Hill v. Air Tran Airways , 2011 WL 1042178, at *3 (6th Cir. Marc h 23, 2011). As discussed above, howeve r, Alexander has not demonstrated that he was trea ted differ ently

from other

fac ulty during the 2006 eva luation. Wit h respe ct to the 2007 evalua tion, Alexander has failed to raise an i s s ue of fac t as to whether the rea sons Def

endants supplied for Alexander’s low raise wer e prete x tual. See Abbott , 348 F.3d at 542. As previously discussed, he has not demonstrated that he was trea ted differ ently from other full prof

essors, nor ha s he established tha t he dese rved a better e valuation.

3. Dea n Meezan’s Interna l Compl aint Alexander contends that Dea n Meezan filed an internal complaint ag ainst him in reta liation for filing char g es with the EEOC. The district court held that Alexander failed to establish a prima

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Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. facie case of reta liation with respe ct to Dea n Meezan’s complaint, beca use the complaint did no t constitute an adve rse e mploy ment action. The scope of Title VI I ’s reta liation provision is broade r than that of the discrimination provision and protec ts employ ees from any actions that would have “dissuaded a rea sonable worke r from making or supporting a char g e of discrimination.” Burlington N. & Santa Fe Ry. Co. v. W hite , 548 U.S. 53, 68 (2006) (quotation marks and citations om i t t ed ). A plaintiff must show that the action was “mater ially adver se” from the standpoint of a “re asonable employ ee.” Id. at 68–69. The Supreme Court has limit ed “ad v er s e employ ment actions” to something more than “petty slights, minor annoy ance s, and simple lack of g ood manner s.” Id. at 68. We assume without dec i d i n g t h at the lodging of a complaint to OSU’s Human Resource s Offic e can constitute a “mater ially adver se” employ ment action. We nonetheless aff irm the district court’s g rant of summary judgme nt to defe ndants on this claim beca use Alexander has prese nted no evidenc e that the dean’ s proff ere d motive for filing t h e co m p laint was a prete x t for reta liation. Ba sed on fac ts that Alexander admitted in his deposition, the dean had a leg itimate, non-re taliatory

rea son for filing a co m plaint alleg ing that Alexander was hara ssing him based on his sexual orientation and HI V-positive status. Alexander told a classroom of students that the dean was rac ist, g ay , and a “lepr echa

un.” Alexa n d er al s o told a provost and a fellow profe ssor that the dean had AI DS and that people fea

red he “mig ht acc identally head butt them or scra tch their fac es.” He sent emails to university

administrators and f

aculty calling the dean a rac ist and a liar who f avore d g ay and white fac ulty members. These undisputed fac ts wer e sufficie nt to motivate the dean’ s

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Alexande r v. Ohio State Unive rsity Coll ege of Soc ial W ork, et al. actions—the dean had the rig ht to seek assistance from OSU in prese rving his reputa tion and keeping his health condition private.

D. Alexander’ s Due Proce ss Claim Finally , we addre ss Alexander’s alleg ation that his rig ht to due proce ss of law was violated by Def endants’ a lleg ed fa ilure to provide him with the response s to the fac ulty survey . To preva il

on a due proce ss claim under § 1983, Alexander must show that, by delay ing in providing him with the survey response s, Def endants, who wer e state actor s, denied him meaning ful acc ess to the courts by conce aling evid en ce cr u ci al to his case . See Sweke l v. City of River Rouge , 119 F.3d 1259, 1263–64 (6th Cir. 1997). Def endants did not deny Alexander meaning ful acc ess to the courts. He was not preve nted from filing this lawsuit. He was provided with the survey results he reque sted while this action was befor e the district court. Alexander contends that the response s to the survey wer e not g enuine, but his only evidenc e of such fra ud is that he was initially informed that there wer e 31 responde nts, when the data included 33, and that the data wer e re- formatted into a s p re ad s h ee t

. He admits that the results supplied no evidenc e of use in this suit

. Al ex an d er has prese nted no evidenc e that Def endants’ failure to swiftly provide him with the survey results preve nted him from obtaining an ef fe ct ive reme dy throug h this litigation. See id. at 1264. Def endants are there fore entitle d t o summary judgme nt on Alexander’s due proce ss claim.

I I I We AFF I RM the district court’s g rant of summar y judgme nt for De fenda

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