UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD G. SCHLEY,

Plaintiff-Appellant,

v.

No. 95-1932

COLLEGE OF CHARLESTON; MARTIN

PERLMUTTER,

Defendants-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

William M. Catoe, Jr., Magistrate Judge.

(CA-92-3350-2-22AK)

Argued: December 6, 1995

Decided: April 23, 1996

Before WIDENER and NIEMEYER, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Douglas A. Churdar, HUNTER & CHURDAR, P.A.,

Greenville, South Carolina, for Appellant. Katherine Dudley Helms,

HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, P.A.,

Columbia, South Carolina, for Appellees. ON BRIEF: Terry E.

Haskins, Greenville, South Carolina, for Appellant. Charles T.

Speth, II, HAYNSWORTH, BALDWIN, JOHNSON & GREAVES,

P.A., Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Alleging that he was not hired for three tenure-track positions

because of his religious beliefs, Donald Schley brought suit against

the College of Charleston and Dr. Martin Perlmutter in his official

capacity under 42 U.S.C. § 1983 and 42 U.S.C.§ 2000e et seq. (Title

VII). The district court dismissed the § 1983 claims prior to trial.

After a bench trial on the Title VII claims, the magistrate judge

entered judgment for the defendants. On appeal, Dr. Schley contends

that the district court erred by denying his motion to amend his complaint and by striking his motion for a jury trial. He also asserts that

the magistrate judge applied an erroneous legal standard when assessing his Title VII claims. We affirm.

I

Dr. Donald Schley received his Ph.D. in Old Testament from

Emory University in 1987 and passed doctoral exams at the University of Gottingen in Germany. He had previously received his undergraduate degree from Eckerd College and his masters degree from the

Candler School of Theology at Emory.

In 1988, Dr. Schley applied for a position as a tenure-track religious studies professor at the College of Charleston in Charleston,

South Carolina. Later that same year, Dr. Schley attended the annual

conference sponsored by the American Academy of Religion/Society

for Biblical Literature seeking a permanent position in his field. At

the Conference he met a friend, Dr. June McDaniel, who was an associate professor at the College. Dr. Schley gave her a copy of his curriculum vitae, which Dr. McDaniel then showed to Dr. Martin

Perlmutter, the chairman of the Department of Philosophy and Religious Studies at the College. Dr. Perlmutter glanced at the vitae and

returned it to Dr. McDaniel.

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Following a search for faculty in 1988-89, the College hired Dr.

Joseph Hoffman. Dr. Schley admitted at trial that he was less qualified than Dr. Hoffman. After Dr. Hoffman withdrew his acceptance,

the College decided to wait a year to conduct another search for a

tenure-track professor. In the meantime, to fill the continuing need for

an instructor, the College created a one-year, visiting assistant professorship. This new position was not on the tenure track.

Dr. McDaniel resubmitted Dr. Schley's name, along with his newly

revised vitae, to the hiring committee. At the suggestion of Dr.

McDaniel, who had also told him not to reveal his political and religious views, Dr. Schley had removed the information in his vitae that

did not relate to his professional experience or qualifications. This

included information about his personal history and his experience

teaching Sunday school. Dr. McDaniel and several other witnesses for

the College testified that including personal information of this type

in a vitae showed a lack of professionalism. Dr. McDaniel also testified that she advised Dr. Schley not to discuss his political and religious views only because he had a tendency to get into heated

arguments on these subjects.

Dr. Schley testified that during his final interview for the shortterm position, Dr. Perlmutter told him that his initial vitae prevented

the College from ever considering him for a tenure-track position.

During cross-examination he admitted that Dr. Perlmutter merely told

him that he would never teach at the College permanently. Dr. Perlmutter testified that he commonly informed visiting faculty that they

were not automatically on track for tenure. He also testified that he

had not referred to Dr. Schley's original vitae during the interview.

The College offered Dr. Schley the one-year position, and Dr. Schley

subsequently earned a reputation as a competent and well-liked

teacher.

In the fall of 1989, the College once again began its search for a

tenure-track professor. In an advertisement for the position, the College specified that it was seeking Ph.D. applicants with a demonstrated excellence in teaching and a specialization in Biblical Studies.

The College considered over 100 applicants, including Dr. Schley,

who submitted his revised vitae for consideration. Dr. Schley's candidacy was initially supported by several members of the Department.

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However, at the conclusion of the 1989-90 search, the College hired

David Frankfurter after a majority of the faculty on the hiring committee determined that he had superior credentials.

Frankfurter had completed his doctoral courses in Religions of Late

Antiquity at Princeton University and was in the process of finishing

his dissertation. At trial, the College introduced evidence showing

that it was its policy to consider an applicant who had completed all

requirements for a doctorate except a dissertation. Dr. Perlmutter and

the other members of the hiring committee also testified that they

considered the prestige of the undergraduate and graduate institutions

Frankfurter attended, the excellence of his recommendations, and his

academic promise, as evidenced by the depth of his scholarly interest

and upcoming publications. In addition, he was publishing at an

acceptable rate and was qualified to teach courses in Biblical Studies.

A number of the faculty members who participated in the hiring

process testified that although Dr. Schley was a qualified candidate,

his application was not as strong as that submitted by Frankfurter.

Specifically, these individuals pointed to Dr. Schley's comparatively

weak recommendations, his lack of relevant experience, and a belief

that Dr. Schley was not as academically promising as Frankfurter.

After Dr. Schley fulfilled his contract, the College offered him a

second one-year position as a visiting professor. In 1990, during his

second year, the College advertised for an opening for a tenure-track

assistant professor who could teach a variety of religious studies

courses. The College specified that although the area of specialization

was open, it was seeking to expand and was not interested in additional New Testament scholars. Although Dr. Schley applied for the

position, several faculty members testified that they believed that Dr.

Schley was not qualified because of his narrow focus on Biblical

Studies. There was additional evidence that the individual who was

eventually hired, Dr. Lee Irwin, was qualified to teach in several of

the fields into which the College was expanding, including Islamic

and Native American religious studies.

Dr. Schley introduced the testimony of a former faculty member

and a student who alleged generally that the faculty was biased

against committed Christians. This testimony was rebutted by other

 4
members of the faculty. Dr. Schley also testified that he was told by

both Dr. McDaniel and Dr. Perlmutter that he belonged in a churchrelated school. Both Dr. McDaniel and Dr. Perlmutter testified that

they had given Dr. Schley advice on ways to improve his vitae, telling

him that only church-related schools would view all the information

in his initial vitae as relevant. Another former student testified that he

was told by Dr. Perlmutter that "someone with a strong religious conviction like Dr. Schley would not be appropriate to teach a New Testament class." At trial, Dr. Perlmutter denied making such a

statement. In addition, as a visiting professor, Dr. Schley taught two

New Testament classes.

A number of professors on the hiring committee, including Dr. Perlmutter, were aware of Dr. Schley's religious beliefs and testified that

those beliefs were never a consideration. They pointed to Dr. Irwin's

vitae which listed his experience as a ministry associate for an ecumenical campus ministry. Other faculty members testified that they

were not aware of Dr. Schley's beliefs during the relevant periods.

Dr. Schley brought suit under § 1983 and Title VII against the College and Dr. Perlmutter in his official capacity, seeking actual and

punitive damages and "such other and further relief" as the court

deemed proper. He alleged that he had been discriminated against

during the College's searches for a tenure-track professor because of

his religious beliefs. The district court dismissed the § 1983 claims

and found that Dr. Schley was not entitled to a jury trial on the

remaining Title VII claims. The district court also denied injunctive

relief. After a bench trial, a magistrate judge entered judgment for the

defendants.

II

Dr. Schley contends that the district court erred by dismissing his

§ 1983 claims, which were based on the First Amendment. He also

contends that he was entitled to a jury trial on his First Amendment

claims and to injunctive relief.

Applying the Eleventh Amendment, the court properly dismissed

the claims for actual and punitive damages brought against the College and Dr. Perlmutter in his official capacity, because, under South

 5
Carolina law, any judgment entered against them would have been

paid out of the state treasury. See Ford Motor Co. v. Department of

the Treasury, 323 U.S. 459, 462-63 (1945). Also, neither states nor

state officials acting in their official capacities are persons within the

meaning of § 1983. Will v. Michigan Dept. of State Police, 491 U.S.

58, 71 (1989). Because as a matter of law Dr. Schley could not

recover actual and punitive damages, he was not entitled to a jury trial

on those claims.

Dr. Schley argues that his prayer for general relief entitled him to

prospective injunctive relief that precluded dismissal of his action

against Dr. Perlmutter in his official capacity. He argues in the alternative that the district court erred by denying his motion to amend his

complaint to add a prayer for injunctive relief against Dr. Pennhurst

in his official capacity.

The district court's denial of Dr. Schley's motion to amend to seek

injunctive relief need not detain us. His prayer for"general relief"

entitled him to all the relief justified by the evidence. Fed. R. Civ. P.

54(c). The Eleventh Amendment does not prohibit all suits for prospective injunctive relief brought against state officials in their official capacities. Edelman v. Jordan, 415 U.S. 651, 664-67 (1974). We

conclude, however, that it was within the court's discretion not to

create an injunctive remedy against Dr. Perlmutter in his official

capacity. The district court denied the injunction, noting that Dr.

Schley had not taught at the College for three years and had a position

in another college. It held that he lacked standing to represent taxpayers and future applicants. However, we need not rest our affirmance

of the district court's denial of injunctive relief on these grounds.

After the trial on Dr. Schley's Title VII claims, it became clear that

the College did not discriminate on religious grounds, and no injunction was warranted. Since a request for injunctive relief is equitable

in nature, Dr. Schley was not entitled to a jury.

III

By consent, the magistrate judge conducted the trial on the Title

VII issues. See 28 U.S.C. § 636(c). The Title VII claims, which were

based on events before the enactment of the Civil Rights Act of 1991,

 6
did not entitle Dr. Schley to a jury. See Landsgraf v. U.S.I. Film

Products, 114 S. Ct. 1483 (1994).

The evidence discloses that from hundreds of applicants, the selection committees, acting without bias against any candidate on account

of religion, chose the most qualified applicants. The witnesses testified why they believed the successful candidates' credentials were

superior to those of Dr. Schley. Their testimony showed no taint of

discrimination, and the magistrate judge's acceptance of their explanations is amply supported by the evidence. Several persons who

were not on the selection committees attributed religiously prejudicial

remarks to Dr. Perlmutter, who denied them. Upholding Dr. Perlmutter and other faculty members who were accused of bias, the magistrate judge made credibility findings that are justified by the record.

The magistrate judge first analyzed the case according to the formula of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). He found that Dr. Schley presented a prima facie case and

consequently considered the defendants' evidence. At this stage of the

proceedings, the presumptions raised by the prima facie case dropped

from the case, and the factual inquiry became whether the defendants

discriminated against Dr. Schley because of his religion. United

States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-

16 (1983). The magistrate judge's conclusion that the evidence did

not disclose discrimination is supported by substantial evidence.

In response to Dr. Schley's Rule 59 motion, the magistrate judge

again properly denied a jury trial on both the § 1983 claims and the

Title VII claims. Dr. Schley's argument that this is a mixed-motive

case lacks merit. Even if it were such a case, the defendants proved

by a preponderance of the evidence that religious discrimination

played no part in the College's hiring decisions. The magistrate judge

also reviewed the First Amendment claims and found that the evidence established that the defendants did not deprive Dr. Schley of his

rights under this amendment.

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In sum, we detect neither reversible error in procedure nor failure

in the College's proof.

AFFIRMED

 8