UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MELVIN J. RUSH,

Plaintiff-Appellant,

v.

ROWAN-SALISBURY BOARD OF

EDUCATION; JOSEPH MCCANN,

Individually, in his official capacity,

and as an agent of the board; N.

WINDSOR EAGLE, Individually, in his

No. 96-2462

official capacity, and as an agent of

the board; DANNY THOMAS,

Individually, in his official capacity,

and as an agent of the board;

DONALD MARTIN, Individually, in his

official capacity, and as an agent of

the board,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Frank W. Bullock, Jr., Chief District Judge.

(CA-95-405-4)

Submitted: October 7, 1997

Decided: October 23, 1997

Before HALL, HAMILTON, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

S. Luke Largess, FERGUSON, STEIN, WALLAS, ADKINS,

GRESHAM & SUMTER, P.A., Charlotte, North Carolina, for Appellant. J. Reed Johnston, Jr., Denis E. Jacobson, TUGGLE, DUGGINS

& MESCHAN, P.A., Greensboro, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Melvin J. Rush appeals from the district court order granting summary judgment in favor of the Defendants in his employment action

alleging Title VII, 42 U.S.C. § 1983 (1994), and First Amendment

violations. We affirm.

Rush, an employee of the public school system, first argues on

appeal that the Defendants failed to select him for the position of

assistant principal of a middle school based on his race--AfricanAmerican. We find that even assuming that Rush has established a

prima facie case of race discrimination under Title VII, the Defendants have come forth with a legitimate non-discriminatory reason for

their ultimate selection of another candidate. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973) (explaining burden-shifting

scheme). The superintendent was seeking an individual to handle

disciplinary matters within the school and the candidate selected had

past experience in this area, having served as a suspension coordinator at another middle school and twenty-seven years in the Marine

Corps. Rush, however, as a guidance counselor had limited experience in the area of discipline and dealing with students on the middle

school level.

Rush attempts to demonstrate that this proffered explanation was

pretext for unlawful race discrimination by drawing attention to the

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fact that, with rare exception, the superintendent always recommends

and the school board always selects the principal's first choice for this

position, which in this case was Rush. On the only other occasion

where the principal's choice was not selected, Rush contends that the

decision was made to select an African-American applicant in order

to gain an African-American presence in the school as well as in the

administration. He notes that were he selected to fill the position of

assistant principal, it would be the first time that the school system

had two African-American administrators. We find these facts insufficient to create an inference of pretext and accordingly believe that the

district court properly granted summary judgment in favor of the

Defendants on this claim.

Rush next asserts that he received a substandard performance evaluation based upon certain statements he had made which reflected his

beliefs of a racial atmosphere within the school system. He contends

that the district court erred in not considering this claim. We note,

however, that Rush failed to present this claim to the district court.

Instead, he argued only that the poor performance evaluation was

based upon his race, an argument which he does not raise on appeal.

Nonetheless, we find that a First Amendment claim would not have

survived summary judgment. To establish a retaliatory claim under

the First Amendment, a public employee must meet a two-pronged

test. First, to merit First Amendment protection, the speech at issue

must relate to matters of public interest and the employee's interest

in free expression must outweigh the employer's interest in efficient

operation of the workplace. Second, the employee must demonstrate

that his protected speech was a substantial factor in the employer's

decision. See Hanton v. Gilbert, 36 F.3d 4, 6-7 (4th Cir. 1994).

Here, Rush's comments on racial relations may arguably relate to

an issue of public interest. However, many of these comments related

directly to other school and school board employees and as such were

likely to create a level of animosity which would hinder the efficient

operation of the school and board. Rush's pointed and personal comments stand in stark contrast to those found by this Court to merit

First Amendment protection in Cromer v. Brown , 88 F.3d 1315 (4th

Cir. 1996), and we find that given the disruption such comments

would likely cause, Rush could not prevail under the First Amendment's balancing test. See DiMeglio v. Haines , 45 F.3d 790, 806 (4th

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Cir. 1995) (stating that "only infrequently will it be `clearly established' that a public employee's speech on a matter of public concern

is constitutionally protected, because the relevant inquiry requires a

`particularized balancing' that is subtle, difficult to apply, and not yet

well-defined").

Finally, Rush argued that he was impermissibly transferred to a different school in retaliation for his aforementioned statements and

EEOC charges in violation of Title VII and the First Amendment's

protection of free speech. The district court granted summary judgment on this claim, noting that because he was transferred without a

loss of pay or benefits Rush did not suffer a "materially adverse

change in the conditions of his employment," and thus could not prevail. On appeal, Rush concedes that in order to establish a claim under

Title VII he must show a materially adverse change in the conditions

of his employment. He asserts, however, that no such showing is necessary to establish a First Amendment claim. In support of this position, he cites to Rutan v. Republican Party of Illinois, 497 U.S. 62

(1990), for the holding that an employment action implicating the

First Amendment need not be materially adverse. We discern no such

holding in Rutan. Rather, the Court in Rutan simply rejected the

defendants' assertion that the particular employment decisions at

issue were not adverse. See id. at 73. We further note that a plethora

of First Amendment cases speak in terms of adverse employment

decisions, and accordingly we do not construe Rutan to eliminate that

requirement. See, e.g., United States v. National Treasury Employees

Union, 513 U.S. 454, 466 (1995). Even assuming, however, that such

a showing is not required, we would find, for the reasons stated

above, that Rush has not demonstrated that his speech was protected

under the First Amendment's balancing test.

Accordingly, we affirm the district court's grant of summary judgment in favor of the Defendants. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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