Johnson v. UC

RECOMMENDED FOR FULL-TEXT PUBLICATION
44 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0184P (6th Cir.)
File Name: 00a0184p.06
University’s affirmative action procedures and occurred while
he was acting in his official position and consisted only of a
letter and memos addressed to the president and other
members of the Board of Trustees (of which plaintiff was a UNITED STATES COURT OF APPEALS
member as Vice President of Human Relations), I think that FOR THE SIXTH CIRCUIT
the University had a significant interest in regulating the _________________
speech to make certain that it was presented in the most
informative and helpful manner. Had the plaintiff presented
;
his concerns in a public venue, my resolution of this issue

would be different. The plaintiff, however, limited his speech JOHN B. JOHNSON,

to the confines of the University and conveyed his views in Plaintiff-Appellant,

his official position as to the success or lack of success of the

University’s affirmative action program. I believe that in this No. 98-3016
v.

situation the plaintiff’s speech is not entitled to First
>

Amendment protections. I think that the district court did not
UNIVERSITY OF CINCINNATI,

err in granting summary judgment in favor of the defendants


on plaintiff’s First Amendment claims. JOSEPH A. STEGER, and

Defendants-Appellees. 
DONALD C. HARRISON,

1
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 96-00727—Sandra S. Beckwith, District Judge.
Argued: January 29, 1999
Decided and Filed: June 1, 2000
Before: KENNEDY, DAUGHTREY, and CLAY, Circuit
Judges.
_________________
COUNSEL
ARGUED: Marc D. Mezibov, SIRKIN, PINALES,
MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellant.
John B. Pinney, GRAYDON, HEAD & RITCHEY,
Cincinnati, Ohio, for Appellees. ON BRIEF: Marc D.

1
2 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 43

Mezibov, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, claim under the participation clause of section 2000e-3(a)
Cincinnati, Ohio, Ted L. Wills, Cincinnati, Ohio, for should be liberally construed and his termination occurred in
Appellant. John B. Pinney, Michael A. Roberts, GRAYDON, close proximity to his filing of an EEOC claim while
HEAD & RITCHEY, Cincinnati, Ohio, for Appellees. complaints with respect to his performance occurred over an
extended period, I agree with the majority that the district
CLAY, J., delivered the opinion of the court, in which court erred in granting summary judgment on this claim.
DAUGHTREY, J., joined. KENNEDY, J. (pp. 39-44),
delivered a separate opinion concurring in part and dissenting Finally, I turn to plaintiff’s claims under the First
in part. Amendment. While I am aware of the cases in which courts
have held that discussions of affirmative action are a matter
_________________ of public concern, I do not think those cases apply where the
speaker is a high level affirmative action official and the
OPINION communications are within the organization. In his position
_________________ at the University, the plaintiff’s job was to advocate on behalf
of minorities. Technically, every word that the plaintiff spoke
CLAY, Circuit Judge. Plaintiff, John B. Johnson, who is during his tenure in this position concerned affirmative action
African American, was employed by the University of because of the nature of his job. In the unique circumstances
Cincinnati (“the University”) as its Vice President of Human of this case, I do not think that the plaintiff is entitled to the
Resources and Human Relations from August 1, 1993 to protections of the First Amendment unless he can show that
January 17, 1996, when he was terminated. Central to his speech was not integrally connected with his job. When
Plaintiff’s role as Vice President of Human Resources was his considering whether an employee’s speech is protected by the
management of the University’s affirmative action program, First Amendment, this Supreme Court has adopted a two part
for which Plaintiff had primary responsibility. Following his inquiry. First, the Court asks whether the speech was of
termination, Plaintiff filed suit against the University; Dr. public concern. If that question is answered in the
Joseph Steger, the University’s president; and Dr. Donald affirmative, the next question is whether the plaintiff’s
Harrison, the University’s Senior Vice-President and Provost interest in speaking outweighed the defendant’s interest in
of University Hospital, alleging that Defendants discriminated regulating his speech. See Connick v. Meyers, 461 U.S. 138,
against him by removing him from his duties because of 146, 103 S.Ct 1684, 1690, 75 L.Ed.2d 708 (1983); Pickering
Plaintiff’s advocacy on behalf of minorities and his filing of v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35,
an EEOC claim against the University. The district court 20 L.Ed.2d 811 (1968). In this case, I do not think that the
dismissed or granted summary judgment on all nine counts of inquiry can be separated into two steps. Instead, the two steps
Plaintiff’s complaint. Plaintiff now appeals the district merge when the employee’s position requires him to speak on
court’s order granting summary judgment to Defendants on issues that normally would be of public concern. Because the
his claim for race and national origin discrimination brought plaintiff’s speech concerned the inner workings of the
under 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e-2;
retaliatory discrimination brought under the opposition and
participation clauses of 42 U.S.C. § 2000e-3(a); as well as his
claim brought under 42 U.S.C. § 1983 for violation of his The majority can point to no case where discrimination based on
right to free speech under the First Amendment. For the general advocacy of minority rights has been found to violate either
§ 1981 or Title VII. What if the general advocacy is for a plan that fails
reasons set forth below, we AFFIRM in part, REVERSE in to meet the standard of City of Richmond v. J.A. Croson Co., 488 U.S.
469, 109 S. Ct. 706, 102 L.Ed.2d 854 (1989)?
42 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 3

matters in the course of employment. I do not believe this part, and REMAND the case back to the district court for
case can be distinguished from Holden. An affirmative action trial.
official’s job is to advocate on behalf of minorities and the
majority’s holding that when an affirmative action official BACKGROUND
disagrees with his employer he has a cause of action under
Title VII creates a disincentive for employers in their decision A. The University and its Affirmative Action Policy
to establish an affirmative action officer position. The
majority attempts to distinguish Holden by stating that the As a federal contractor, the University is required to meet
plaintiff was not protesting the implementation of an certain affirmative action obligations. See 41 C.F.R. § 60-
affirmative action program, but rather, he was protesting 1.40; Executive Order No. 11246. These obligations consist
discrimination in hiring. In reality, there is no distinction. of, among other things, maintaining and updating affirmative
The plaintiff contends that he was terminated for his active action programs; analyzing the University’s workforce by race
advocacy on behalf of minorities, yet, this was his job. If he and sex; analyzing areas of underutilization of women and
was not performing his job to the satisfaction of his minorities; maintaining data regarding the employment of
employers, the University is entitled to dismiss him. The women and minorities; and analyzing the impact of the
plaintiff has presented no evidence that his advocacy went University’s employee selection process. See 41 C.F.R. § 60-
beyond the scope of his employment, and I believe this is 1.40; § 60-2.11(a); § 60-2.11(b); § 60-3.4; § 60-3.15.
significant. I do think that the plaintiff’s employment as a
high level affirmative action officer does and should make a In 1978, the Office of Federal Contract Compliance and
difference in the analysis of his claims. Because it was his Programs (“OFCCP”) investigated the University and found
job to advocate on behalf of minorities I do not think he is pay disparities among African Americans and women in the
entitled to protected status for his general advocacy on behalf University; the OFCCP therefore concluded that the
of minorities. For this reason, I believe that the defendants University was in violation of its affirmative action duties.
are entitled to summary judgment on plaintiff’s claims under See 41 C.F.R. § 60-1.26. As a result, the University and the
section 1981, section 2000e-2 of Title2 VII and the opposition OFCCP entered into a Conciliation Agreement wherein the
clause of section 2000e-3(a)Title VII. Because the plaintiff’s University agreed to implement procedures to prevent
discrimination against women and minorities. These
procedures consisted of identifying underutilized positions,
creating a list of new candidates for new positions, and
2 ensuring that the list included names of qualified women and
When you come to the claim that Dr. Steger violated § 1981 because
of plaintiff’s general advocacy for the use of the affirmative action plan minorities. If a non-minority male applicant was selected and
and disagreement over the President’s use of the waiver for particular if women and minorities did not appear on the candidate list,
jobs, the plaintiff’s claim is even more murky. Plaintiff has not claimed then the employing unit at the University was required to give
that the University of Cincinnati violated section 1981 or Title VII in its
failure to hire any specific individuals. While he made that claim on his written reasons for the omissions. The affirmative action
own behalf in the District Court, he has not appealed its dismissal. His office was to approve or disapprove the selected person after
disagreement with the University related to the implementation of its a determination of whether sex or race was a factor in the
affirmative action plan, a plan the University maintained even though the selection.
term of the plan had expired and which was adopted without any finding
or admission of discrimination. In an effort to comply with the mandates of the Conciliation
The failure to hire the African-American candidate as head of the
Alliance hospitals was not even covered by the affirmative action plan. Agreement regarding the University’s hiring practice, the
Nor did Dr. Steger participate in it. University developed a form – known as the A-900 form or
4 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 41

A-900 process – that tracked open employment positions. section 2000e-2 claims against the University and Dr. Steger
Under this process, the hiring manager of each department in his official capacity cannot survive.
wishing to fill a vacant position, no matter how high or low in
the organizational structure, was required to complete an A- I also am at a loss as to how the majority can sustain
900 form and submit it to the affirmative action office plaintiff’s § 1981 claim against Dr. Harrison in his individual
(“AAO”). In turn, the AAO would inform the hiring manager capacity. The plaintiff has presented no evidence that Dr.
whether the vacant position was underutilized; meaning Harrison influenced the University and its officials in the
whether the position was one that statistically had fewer decision to relieve the plaintiff of his duties. In his brief to
women and minorities employed than would be expected this court, the plaintiff does not even address the viability of
given the makeup of the overall population. his § 1981 claim against Dr. Harrison. Instead, he focuses his
argument on Dr. Steger’s role in his dismissal. I believe the
If the position to be filled was underutilized, the hiring plaintiff chose this tactic because there were no grounds upon
manager was required to advertise the open position, which to find Dr. Harrison liable for a § 1981 violation and I
assemble a pool of candidates, select a candidate, and send believe that it is error for this court not to dismiss plaintiff’s
the information to the AAO. If the selected candidate was not § 1981 claim against Dr. Harrison in his individual capacity.
a member of the underutilized class, then the affirmative
action director and the hiring manager would consider Plaintiff’s claims under § 1981 and § 2000e-2 of Title VII,
whether sufficient numbers of members of the underutilized along with plaintiff’s retaliation claim under the opposition
class were considered. The affirmative action director could clause of Title VII, also fail because plaintiff has failed to
reject the selected candidate and require the hiring manager to establish that he is a member of a protected class. Although
begin a new search. However, Dr. Steger as president of the the majority attempts to show that it has been long established
University, could waive the A-900 process and allow a hiring that an advocate for a minority who has been discriminated
manager to hire a non-minority candidate, despite the against is protected under Title VII and § 1981, I believe that
underutilization of minorities within the particular the majority’s analysis of our prior cases is fundamentally
department, and over the objection of the AAO. flawed. I agree with the majority that individuals are
permitted to pursue claims of discrimination based on their
Following the expiration of the Conciliation Agreement in advocacy of another person’s rights, but, in all of these cases,
1980, the University’s AAO fell into a state of disarray. In the individual is advocating upon the behalf of a specific
the spring of 1988, Dr. Steger appointed the President’s individual or specific individuals whose constitutional rights
Advisory Council on Race Relations and Human Decency or Title VII rights have been violated. Plaintiff’s claim is not
(“PACRRHD”) and charged it with examining issues of race based on his advocacy of specific individuals, but rather, he
relations at the University. The focus of the PACRRHD was claims protected class status based on his general advocacy.
to “create a diverse community in which all members feel a When we extend protected class status to individuals like the
sense of responsibility for the elimination of ignorance, plaintiff, we undermine the protections afforded by Title VII
suspicion, prejudice and racism.” In a report submitted to Dr. and the Constitution. Plaintiff’s claim against the University
Steger on August 4, 1989, the PACRRHD noted that although and its employees basically boils down to a disagreement over
African Americans occupied 28% of the University’s total the implementation of an affirmative action program. This
staff, they occupied the lower employment categories at the Circuit, in Holden v. Owens-Illinois, 793 F.2d 745, 751 (6th
University in vastly disproportionate numbers. For example, Cir. 1986), held that an employee does not obtain protected
African Americans occupied 74% of the service staff, 29% of status simply because the employee handles affirmative action
40 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 5

advocacy, the direct evidence of discrimination also must the technical staff, and 33% of the secretarial staff; however,
concern advocacy. I find no direct evidence in the record African Americans occupied only 10% of the
establishing that any of the defendants discriminated against executive/administrative staff and 11% of the
the plaintiff based on his advocacy; therefore, the plaintiff’s professional/non-faculty staff. Based on these findings, the
claim can survive only if he can establish a prima facie case PACRRHD recommended a new comprehensive affirmative
of discrimination under the McDonnell Douglas-Burdine test. action initiative at the University with specific goals toward
As stated in the majority opinion, the plaintiff must show that increasing the number of minorities in upper level positions.
(1) he is a member of a protected class; (2) he was qualified The PACRRHD also recommended the creation of a new high
for his job; (3) he suffered an adverse employment action; and level position to head the affirmative action program. The
(4) he was replaced by someone outside the protected class or individual selected for this position would report directly to
was treated differently than a similarly situated individual the president and have Cabinet-level status, and would be
outside the protected class. See McDonnell Douglas Corp. v. responsible for “following current Affirmative Action
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d functions, as well as the development of new programs,
668 (1973). I do not believe that the plaintiff has satisfied policies and diversity initiatives to improve and enhance the
either the first or fourth prong of this test. In my discussion quality of life.” In response to the PACRRHD’s
of plaintiff’s retaliation claim under the opposition clause of recommendations, the Vice President of Human Resources
Title VII, I address the plaintiff’s status as a member of a and Human Relations (“VPHHR”) position was created
protected class. For purposes of this analysis, I will limit my wherein the individual occupying that role would be in charge
dissent to the plaintiff’s failure to establish the existence of of both human resources and the affirmative action program.
the fourth prong, although I believe that my analysis of
plaintiff’s protected status below applies equally to these B. Plaintiff’s Role and Course of Employment at the
claims. The protected class to which the plaintiff claims University
membership can be classified as the class of advocates for
minorities. The plaintiff has presented no evidence to In 1993, Dr. Steger recruited Plaintiff to serve as the
establish either that he was replaced by someone who was not VPHHR following a national search. Plaintiff signed a three-
an advocate for minorities or that other “non-advocates” who year contract and began his duties as VPHHR on August 1,
were similarly situated were treated differently. The 1993. Plaintiff was the second person to occupy this role; and
plaintiff’s has failed to establish a prima facie case of there was a period of time before Plaintiff was appointed that
discrimination; therefore, his section 1981 claims against Dr. the position was unoccupied and the AAO was without a
Steger and Dr. Harrison in their individual capacity and his permanent head. As a result, at the time Plaintiff was brought
aboard, the AAO was in state of disorder and flux. There was
a back log of A-900 forms that had accumulated during the
give me adequate support for my position on both time the AAO was without a head, as well as large number of
campuses. A-900 waivers. For example, there were approximately 300
The plaintiff does not raise any issues contending that he experienced waivers of the A-900 process from 1992 to May of 1994.
discrimination based on his race or national origin and any attempt to Plaintiff expanded the AAO, and hired George Wharton as its
construe his claim as anything but a claim based on his advocacy of director in September of 1994.
minority rights is erroneous. Recasting the plaintiff’s claim as one of
advocacy on behalf of specific individuals as the majority appears to do,
rather than one of general advocacy, fails because the plaintiff presented Plaintiff was troubled by what he perceived to be the
no evidence connecting his advocacy on behalf of these specific excessive number of waivers of the A-900 process, and in
individuals to his discharge.
6 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 39

July of 1994, Plaintiff sent a memorandum to the Cabinet _____________________________________________
members entitled, “Is there an Affirmative Action
Commitment?” In the memorandum, Plaintiff expressed his CONCURRING IN PART, DISSENTING IN PART
concern about the number of waivers in the A-900 process, _____________________________________________
questioned the University’s commitment to equal employment
opportunities, and warned that continued violations could1 KENNEDY, concurring in part and dissenting in part.
cause the OFCCP to enforce a new conciliation agreement. While I agree with the majority’s resolution of the immunity
issues and Dr. Johnson’s retaliation claim under the
Throughout 1994 and 1995, Plaintiff became particularly participation clause, I dissent from the majority opinion
concerned with the University’s commitment to affirmative because I disagree with the majority’s resolution of the rest of
action regarding University Hospital’s association in the the plaintiff’s claims. In particular, I disagree with the
“Alliance,” a private, non-profit health care management majority’s analysis of the plaintiff’s claims under Title VII
corporation with a single board of directors created to manage and § 1981. I also dissent from the majority’s decision on the
and control four of the major hospitals in the community. By plaintiff’s First Amendment claims.
joining the Alliance, the University surrendered daily
operation of University Hospital to the health care The majority holds that the plaintiff presented direct
management group, although those employed there remained evidence of the defendants’ discrimination through his
employees of the University until January 1, 1997. Despite testimony concerning University officials’ expressions of race
his requests, Plaintiff was not allowed to play any meaningful consciousness during the hiring process. This testimony,
role with respect to Alliance, even though the human resource however, does not provide direct evidence of the defendants’
counterparts from the other hospitals involved regularly discrimination against the plaintiff based on his advocacy of
contributed. minority rights. 1 Because plaintiff’s claim is based on his
Under the Alliance agreement, the University was required
to hire a Senior Executive Officer (“SEO”) to run the 1
University Hospital’s daily operations. The SEO was to be an In his brief to this court, the plaintiff identified three issues for
Alliance employee who reported directly to the President of review. His claims under Title VII, §1981, and the First Amendment
were couched in terms of his advocacy upon behalf of minorities. In
the Alliance; however, the University participated in the particular, his brief states the issues as follows:
hiring selection for this position. An outside search firm was “2. Whether, for Mr. Johnson’s Title VII and 42
hired to facilitate the search. The search firm identified U.S.C. §1981 claims, he had a protected status because
approximately 200 resumes; out of these resumes, three he advocated minority rights.
candidates were selected for the final vote: a white male, an 3. Whether, for Mr. Johnson’s First Amendment
retaliation claim, the importance of his advocacy of
African-American male, and a white female. After minority rights outweighed UC’s interest in
maintaining the operation of its affairs.”
In addition, his complaint to the EEOC stated:
1 The university employs me as the Vice President for
The OFCCP in fact conducted a second audit of the University Human Resources. The institution has obstructed me
which was completed on May 26, 1995, and thereafter sent the University from performing my assignment as the executive
a completed audit outlining nine violations. However, over the objections authorized for planning and operating human resource
of Plaintiff and Wharton, Dr. Steger retained the services of an outside systems for the east and west . . .
law firm to respond to the notice from the OFCCP rather than allow President Joseph Stegar tells me that I am authorized to
Plaintiff the opportunity to respond to the violations. perform my executive level duties, but he also fails to
38 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 7

disagree with the district court’s conclusion that the interviewing all three candidates, Plaintiff cast his vote in
University’s interest outweighed Plaintiff’s interest in favor of the African-American male based on the candidate’s
speaking out on behalf of the University’s failure to comply overall experience as well as the fact that Plaintiff found him
with its affirmative action policies. Even if Plaintiff’s speech to be the strongest of the three candidates. However, the
delayed the University’s hiring of prospective employees, this white male was selected for the SEO position by receiving the
does not rise to the level of having a detrimental impact on majority of votes by the selection committee. At a July 25,
close working relationships or undermining a goal or mission 1994 meeting attended by Dr. Harrison and Plaintiff
of the University. See Meyers, 934 F.2d at 730. To the following the SEO selection, it was agreed that Plaintiff
contrary, Plaintiff’s speech regarding the University’s failure would direct the search for the next two executive level
to comply with its A-900 process promoted or advanced the positions to become available at the University Hospital, and
University’s alleged goal of employment equality for women that efforts would be made to target minorities to fill these
and minorities; his speech did not undermine that goal. positions. Plaintiff sent a memorandum dated July 27, 1994,
Furthermore, the district court’s grant of summary judgment to Dr. Harrison detailing Plaintiff’s understanding of the
based upon its determination that there were no material outcome of the meeting.
factual disputes regarding the disruptive impact of Plaintiff’s
complaints upon the University’s business was improper in In August of 1995, Dr. Harrison sought a waiver of the A-
any event; the contested issues of fact, based upon the 900 process to fill the position of Vice Chairman of the
parties’ differing characterizations of the evidence, are very Department of Surgery for the College of Medicine.
much in dispute and would be best left for determination at Specifically, Dr. Harrison requested that he be able to hire Dr.
trial. See Mount Healthy City Sch. Dist. Bd. of Educ., 429 James Hurst, a former member of the College of Medicine
U.S. at 287. We therefore reverse the district court’s order faculty, without going through the A-900 process because he
granting summary judgment to Dr. Steger and Dr. Harrison knew and endorsed the former member’s experience and
individually on this claim. abilities. Plaintiff sent a letter dated September 21, 1995, to
Dr. Steger protesting Dr. Harrison’s waiver of the A-900
CONCLUSION process and questioning the University’s commitment to
providing equal opportunities in employment. Despite
For the above-stated reasons, we AFFIRM the grant of Plaintiff’s protestations, Dr. Steger approved the A-900
summary judgment to the University on Plaintiff’s claims waiver at Dr. Harrison’s request.
brought under the 42 U.S.C. § 1981 and § 1983 on Eleventh
Amendment immunity grounds; and to Dr. Steger and Dr. A few months later, in November of 1995, the University
Harrison individually on Plaintiff’s claims brought under Title was negotiating with District 925 of the Service Employees
VII. However, we REVERSE the grant of summary International Union (“925") and, as VPHHR, Plaintiff
judgment to the University and Dr. Steger in his official participated in the negotiations. District 925 represents the
capacity on Plaintiff’s claims brought under § 2000e-2, and secretarial and support staff of the University. The contract
under both the opposition and participation clauses of between the University and 925 employees was up for
§ 2000e-3; and to Dr. Steger and Dr. Harrison on Plaintiff’s renewal, and the critical issue during the negotiations was
claims brought under § 1981 and § 1983. We also tuition remission; that is, the amount of money 925
REVERSE any corresponding pendant state law claims and employees would have to reimburse the University for the
REMAND the matter for trial. cost of tuition waivers granted by the University in the event
the employee failed to achieve a certain minimum grade.
8 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 37

This issue was the final barrier to the University and 925 his complaints and concerns to Cabinet officials rather than
reaching an agreement, and the University was prepared to the general public, is of no consequence because the subject
accept the cost of a strike if 925 did not agree to the matter of Plaintiff’s complaints was an established matter of
University’s terms. public concern in this circuit — “an opinion concerning the
general policy of affirmative action . . . .” See id.; see also
Dr. Steger met with Plaintiff and Stephanie Echols, the Chappel v. Montgomery County Fire Protection Dist. No. 1,
University’s representative at the negotiations, to discuss the 131 F.3d 564, 579 (6th Cir. 1997) (“Constitutional protection
status of the 925 matter. There is a dispute as to what for speech on matters of public concern is not premised on the
transpired at the meeting inasmuch as Dr. Steger contends communication of the speech to the public.”). The plaintiff
that the three discussed a proposal from 925, which Dr. Steger in Rankin voiced her opinion about the President in a private
rejected; while Plaintiff contends that there was no proposal conversation which was later reported to her employer;
rejected at the meeting. However, that aside, the parties are however, the Supreme Court found that the speech, even
in agreement that it was understood that the University would though internal, was nonetheless of a public concern and
risk a strike rather than comply with the 925 remission therefore protected because it involved the President. See
demands. At the close of the meeting, Dr. Steger indicated Rankin, 483 U.S. at 386. The same reasoning applies to this
that he had to leave to attend a dinner engagement, but that he case.
could be reached at home later in the evening if developments
were made in the 925 negotiations. Therefore, having found that Plaintiff’s speech was a matter
of public concern, the next relevant inquiry under this claim
Echols negotiated with 925 until late into the evening, concerns comparing the University’s proclaimed need to run
repeatedly updating Plaintiff on her progress. According to an efficient organization against Plaintiff’s right to speak. See
Echols, each time that she updated Plaintiff, he repeated Dr. Pickering, 391 U.S. at 568. “In order to justify a restriction
Steger’s warning that the University would accept a strike on speech of public concern by a public employee, plaintiff’s
rather than concede to tuition remission. Finally, at about speech must impair discipline by superiors, have a detrimental
11:30 p.m., Echols tentatively agreed with 925 members on impact on close working relationships, undermine a legitimate
a proposal that she believed would satisfy the University and goal or mission of the employer, impede the performance of
informed Plaintiff of the proposed settlement. However, the speaker’s duties, or impair harmony among co-workers.”
according to Plaintiff, he informed Echols at that time that the Meyers, 934 F.2d at 730.
tentative settlement to which she agreed was not in line with
what the University was prepared to accept. Echols replied Here, the district court found that Plaintiff’s speech at issue
that the parties had departed, and if the tentative settlement was a matter of public concern, but that the University’s
was not acceptable, it could be addressed later. interest outweighed Plaintiff’s right to free speech in this
context, because Plaintiff’s verbal complaints about the
Due to the late hour -- about midnight by this time -- University’s failure to comply with its A-900 procedure was
Plaintiff decided to wait until the morning to telephone Dr. “causing a tremendous disruption in the University’s ability
Steger and inform him of the proposed settlement. Plaintiff to deliver its services.” (J.A. at 100088.) The district court
telephoned Dr. Steger at his office at approximately 7:00 a.m., based its conclusion on various evidence in the record that
the next day; however, Plaintiff did not speak with Dr. Steger Plaintiff had been tying up employment decisions within the
because he had already left for a breakfast meeting with the University because of his protests regarding the University’s
deans of the University. News of the proposed settlement failure to follow its affirmative action program. Id. We
36 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 9

contravention of city policy on affirmative action” to two apparently did not escape the news media, because Dr. Steger
employees of an organization the purpose of which was to was informed of the tentative settlement during his breakfast
assist minorities in competing for jobs. Id. at 727. The meeting with the deans. Dr. Steger was not pleased that
plaintiff claimed that his statements on affirmative action led Plaintiff had not reached him with the latest developments,
to his constructive discharge. Id. at 729. In finding that the and sent Plaintiff a letter dated November 15, 1995,
plaintiff’s statements were protected under the First admonishing Plaintiff while claiming that he “was
Amendment in that they addressed a matter of public concern, embarrassed this morning at a breakfast with the Deans when
we noted that the case was “analogous to Rankin [v. they asked me the terms of the 925 settlement. I had to say I
McPherson], not Connick [v. Myers].” Id. We then opined did not know they settled -- let alone the terms.” (J.A. at
as follows: 298.)
In Connick permissible employment action was taken as Because the Board of Trustees was the body to ultimately
a result of an internal office dispute about a transfer, and authorize the 925 settlement, Dr. Steger requested that
the speech was concerned only with internal office Plaintiff draft a summary of the settlement for the Board to
policy. In Rankin the employee had no dispute with her review at its next meeting on November 28, 1995. The Board
employer until she stated at work that if a second attempt reviewed the summary; however, it demanded to see the full
were made on the President’s life she hoped it would be text of the agreement before they would approve it, and
successful. The court held that in context the speech planned to meet again on December 18, 1995. In the
addressed the employee’s dissatisfaction with the meantime, apparently at Plaintiff’s directive, the payroll
President’s cuts in Medicaid, CETA and welfare benefits. department began programming its computers to adjust for
The Court said that “conversation addressing the the pay increases and back pay adjustments that were
policies of the President’s administration . . . [made] on reflected in the settlement. The payroll department
the heels of a news bulletin regarding what is certainly a subsequently informed Dr. Steger that the payroll adjustments
matter of heightened public attention: an attempt on the would be reflected on the December 5, 1995, paychecks
life of the President,” is plainly a matter of public despite the Board’s lack of final approval because it was not
concern. Rankin, 483 U.S. at 386, 107 S. Ct. at 2898. possible to reverse the computer adjustments at that time.
The speech scrutinized in Rankin was in the form of an Accordingly, Dr. Steger told the payroll department to issue
opinion, made in a private conversation later reported to the checks as adjusted. On December 18, 1995, the Board,
the employee’s supervisor. unhappy with the terms of the settlement but constrained by
the adjustments in the payroll system, accepted the 925
Id. The Meyers Court concluded that “speech about a settlement.
politically charged issue like affirmative action — whether
pro or con — should be considered a matter of public Plaintiff filed a complaint with the Equal Employment
concern.” Id. at 730. Opportunity Commission (“EEOC”) on December 5, 1995,
alleging race and retaliatory discrimination against the
As in Meyers, Plaintiff’s speech was made known to his University. Plaintiff claimed that University officials,
supervisor, Dr. Steger, and dealt with the University’s failure particularly Dr. Harrison, were discriminating against him
to comply with policies relating to its affirmative action because of his race as an African American, and not allowing
program. Therefore, Plaintiff’s speech was a matter of public him to fully participate in Human Resource matters in regard
concern. See 934 F.2d at 730. The fact that Plaintiff directed to University Hospital. Plaintiff also alleged that he was
10 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 35

retaliated against for his protestations regarding the hiring of 147. “Whether an employee’s speech addresses a matter of
the SEO. On or around December 20, 1995, Dr. Steger public concern must be determined by the content, form, and
informed his Cabinet that Plaintiff had filed a discrimination context of a given statement, as revealed by the whole
complaint with the EEOC. Plaintiff met with Dr. Steger on record.” Id. at 147-48.
December 20, 1995, in the course of a regularly scheduled
meeting, and requested that Dr. Steger provide him with If Plaintiff’s speech in this regard is found to be a matter of
information regarding what role the Human Resource public concern and thus protected, the next inquiry is whether
department was to play in managing the personnel affiliated Plaintiff’s free speech interests outweighed Defendants’
with the Alliance, as well as information regarding the interest in regulating his speech under the well known
Board’s criticisms of Plaintiff’s handling of the 925 Pickering balancing test. See Pickering, 391 U.S. at 568. If
negotiations. Dr. Steger agreed to provide Plaintiff with this Plaintiff’s interests in speaking outweighed that of
information in writing within a few weeks. Defendants’ interests, then Plaintiff’s First Amendment rights
have been violated. See Dambrot v. Central Mich. Univ., 55
On January 9, 1996, Dr. Steger sent Plaintiff a F.3d 1177, 1186 (6th Cir. 1995). If the First Amendment
memorandum outlining what Dr. Stegar found to be violation was a substantial or motivating factor in
deficiencies in Plaintiff’s performance as VPHHR, including Defendants’ action against Plaintiff, Defendants may present
Plaintiff’s handling of the 925 negotiations, as well as evidence that they would have terminated Plaintiff in the
complaints that Dr. Steger had allegedly received from other absence of his protected conduct, which is a question of fact
departments regarding the length of time it took Plaintiff to for the jury to decide. See Mt. Healthy City Sch. Dist. Bd. of
process an A-900 form. Dr. Steger concluded the letter by Educ. v. Doyle, 429 U.S. 274, 287 (1977).
indicating that he “questioned [Plaintiff’s] continued ability
to occupy a leadership position in this University.” In In this case, the district court found that Plaintiff’s speech
response, Plaintiff sent Dr. Steger a memorandum dated on Defendants’ noncompliance with its affirmative action
January 16, 1996, wherein Plaintiff disputed Dr. Steger’s program to be a matter of public concern. However, the court
criticisms. Plaintiff also indicated that he was surprised by found that the University’s interests maintaining its hiring
Dr. Steger’s “attack” on his performance since he was hearing process without disruption outweighed Plaintiff’s right to free
about Dr. Steger’s dissatisfaction for the first time. In fact, speech. Although we agree with the district court that
the record indicates that Plaintiff received two written Plaintiff’s speech regarding the University’s failure to comply
performance evaluations from Dr. Steger; one in July of 1994, with the A-900 process was a matter of public concern, we
and the other about a year later. Although the second disagree that the University’s purported interests outweigh
evaluation was not as complimentary as the first, Dr. Steger Plaintiff’s right to free speech.
gave Plaintiff high marks for his leadership and vision for the
future in both evaluations. In Meyers v. City of Cincinnati, this Court held that “[j]ust
as an opinion concerning the general policy of affirmative
The day after receiving Plaintiff’s memorandum, January action would be a matter of public concern, so too is speech
17, 1996, Dr. Steger sent Plaintiff a termination notice and concerning methods of implementing affirmative action.”
removed Plaintiff from his duties. Plaintiff filed the instant 934 F.2d 726, 730 (6th Cir. 1991), modified on other grounds,
suit on July 25, 1996. 979 F.2d 1154 (6th Cir. 1992). The plaintiff in Meyers held
the title of “assistant fire chief in charge of personnel,” and he
allegedly made statements which were “in direct
34 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 11

Considering this evidence in the light most favorable to DISCUSSION
Plaintiff, a reasonable jury could find that Plaintiff was
retaliated against for filing his complaint and charge with the I. ELEVENTH AMENDMENT IMMUNITY DEFENSE
EEOC. & BARRED CLAIMS
As with Plaintiff’s claim brought under the opposition We first address Defendants’ Eleventh Amendment
clause, Plaintiff has created an issue of fact for the jury as to immunity defense because this defense raises a question of
whether Defendants’ proffered reasons for Plaintiff’s federal jurisdiction. See Wilson-Jones v. Caviness, 99 F.3d
discharge were merely pretextual by suggesting that 203, 206 (6th Cir. 1996) (“As an Article III restriction, state
Defendants’ justifications possibly have no basis in fact or are immunity is jurisdictional in the same sense as the complete
insufficient to explain his discharge, and are not the true diversity requirement, . . . or the well-pleaded complaint
reasons for Plaintiff’s termination. We therefore reverse the rule.”) (citations omitted). Regarding Plaintiff’s claims
district court’s grant of summary judgment to the University brought against Defendants pursuant to 42 U.S.C. § 1981 and
and Dr. Steger in his official capacity on Plaintiff’s claim § 1983, the University, as an arm of the State, is immune from
brought under the participation clause of Title VII. suit under the Eleventh Amendment because it is well-settled
that a plaintiff is precluded from directly suing a State in
IV. SECTION 1983 CLAIM FOR VIOLATION OF federal court on these claims. See Hafford v. Seidner, 183
FIRST AMENDMENT RIGHTS F.3d 506, 512 (6th Cir. 1999) (recognizing that claims against
a State under § 1981 are barred by the Eleventh Amendment);
In Count VI of his amended complaint, Plaintiff brought a see also Quern v. Jordan, 440 U.S. 332, 350 (1979) (holding
claim under 42 U.S.C. § 1983, alleging that Defendants that § 1983 does not override a State’s Eleventh Amendment
retaliated against him for voicing his concerns about immunity). However, Plaintiff’s § 1981 and § 1983 claims
Defendant’s failure to properly implement and comply with against Dr. Steger and Dr. Harrison in their individual
the A-900 process -- Defendant’s affirmative action program capacities are not barred by the Eleventh Amendment.
-- in violation of Plaintiff’s First Amendment right to free
speech. Plaintiff’s claims brought against Dr. Steger and Dr.
Harrison in their individual capacities under Title VII cannot
As a public employee, to establish a § 1983 claim that go forward, however, because such claims can only proceed
Defendants denied Plaintiff his right to free speech under the against individuals who otherwise qualify as employers,
First Amendment, Plaintiff had to prove that 1) the action was which Plaintiff does not allege.2 See Wathen v. General
taken against him for speech that was directed toward an issue
of public concern, and that 2) his interest in speaking as he
did outweighed Defendants’ interest in regulating his speech. 2
We note that the Ohio Supreme Court has recently indicated “that
See Connick v. Myers, 461 U.S. 138, 147 (1983); Pickering v. for purposes of R. C. Chapter 4112, a supervisor/manager may be held
Board of Educ., 391 U.S. 563, 568 (1968).The initial inquiry jointly and/or severally liable with her/his employer for discriminatory
into determining whether a public employee’s speech is a conduct of the supervisor/manager in violation of R. C. 4112.” See
matter of public concern is a question of law for the court to Genaro v. Central Transport, Inc., 703 N.E.2d 782, 787-88 (Ohio 1999).
decide. Rankin v. McPherson, 483 U.S. 378, 386 n.9 (1987). Therefore, upon remand, Plaintiff’s claim of race discrimination and
Absent unusual circumstances, a public employee’s speech retaliation brought against Dr. Steger individually under Ohio Rev. Code
§ 4112.99 may go forward. Because the Ohio court did not establish that
dealing with “matters only of personal interest” is not a non-supervisor may be individually liable under Chapter 4112, the same
afforded constitutional protection. See Connick, 461 U.S. at does not hold true for Plaintiff’s Chapter 4112 claim brought against Dr.
12 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 33

Electric Co., 115 F.3d 400, 405 (6th Cir. 1997) (“[A]n discrimination action. See Avery Dennison Corp., 104 F.3d
individual employee/supervisor who does not otherwise at 861; Zanders v. National R.R. Passenger Corp., 898 F.2d
qualify as an ‘employer,’ may not be held personally liable 1127, 1135 (6th Cir. 1990). Although temporal proximity
under Title VII.”); see also Morris v. Oldham County Fiscal alone does not support an inference of retaliatory
Court, 201 F.3d 784, 788 n.1 (6th Cir. 2000) (recognizing discrimination in the absence of other evidence, closeness in
Wathen’s holding). Plaintiff’s Title VII claims are time between the filing with the EEOC and the adverse
permissible against the University in federal court employment action is relevant and may evince the employer’s
notwithstanding the Eleventh3 Amendment and against Dr. intent. See Cooper v. City of North Olmstead, 795 F.2d 1265,
Steger in his official capacity. See Alden v. Maine, 527 U.S. 1272-73 (6th Cir. 1986) (“The mere fact that [the plaintiff]
706, 119 S. Ct. 2240, 2266-68 (1999); Fitzpatrick v. Bitzer, was discharged four months after filing a discrimination claim
427 U.S. 445, 456 (1976) (finding that Congress abrogated is insufficient to support an inference of retaliation.”). In
the States’ sovereign immunity by enacting Title VII under short, in order to meet the final prong of his prima facie case,
the Enforcement Clause, § 5, of the Fourteenth Amendment). Plaintiff must “put forth some evidence to deduce a causal
connection between the retaliatory action and the protected
In summary, Plaintiff is allowed to proceed with his claims activity [which requires] the court to draw reasonable
brought under Title VII against the University and Dr. Steger inferences from that evidence, providing it is credible.” See
in his official capacity; and he is allowed to proceed with his Avery Dennison Corp., 104 F.3d at 861. We believe that
claims brought under § 1981 and § 1983 against Dr. Steger Plaintiff has met his burden of showing a temporal proximity
and Dr. Harrison in their individual capacities.4 These claims between his filing of his EEOC complaint and his
will be addressed in turn as follows. termination, coupled with other evidence, sufficient to
establish causation.
For example, Plaintiff has shown that his first two
Harrison individually. See Summerville v. Ross/Abbott Labs., No. 98- performance evaluations had been strong prior to his filing of
3517, 1999 WL 623786, at **4 (6th Cir. Aug. 10, 1999). Because the EEOC charge. Plaintiff has also shown that the
Plaintiff did not sue Dr. Harrison in his official capacity, Dr. Harrison is University hospital resisted his efforts, particularly with
relieved of liability under Title VII and Ohio Rev. Code § 4112. respect to the hiring of the SEO and the Vice-Chairman of the
3 Department of Surgery, and that he was excluded from a
Plaintiff sued Dr. Steger in his individual capacity with respect to retreat where many other human resource administrators met
damages, and in his official capacity with respect to Plaintiff’s claim for
equitable injunctive relief. However, because Plaintiff now has a new job to discuss the hospital merger. Furthermore, the same day
with similar pay and benefits, the equitable relief may no longer remain that Dr. Steger informed the Cabinet of Plaintiff’s filing of his
at issue, and Plaintiff now seeks money damages. Furthermore, Dr. EEOC complaint and that they may have to defend against it,
Steger claims that he has no authority to grant Plaintiff equitable relief Plaintiff requested a performance evaluation from Dr. Steger
and that he should be dismissed from suit. We leave these issues for the and only in response to this request did Dr. Steger then
district court to resolve on remand. scrutinize Plaintiff’s performance and provide him with a
4 negative evaluation. On January 16, 1996, Plaintiff
Our holdings as to Plaintiff’s claims brought under Title VII apply responded to Dr. Steger’s evaluation by sending Dr. Steger an
with equal force to his claims brought under Ohio Rev. Code § 4112. See
Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm., 575 N.E.2d evaluation accusing him of, among other things, retaliating
1164,1167 (Ohio 1991) (“[W]e have determined that federal case law against Plaintiff for filing and EEOC claim. The next day, Dr.
interpreting Title VII . . . is generally applicable to cases involving alleged Steger terminated Plaintiff from his duties at the University.
violations of R. C. Chapter 4112.”); see also supra note 2.
32 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 13

advocacy right as an affirmative action representative and his II. STANDARD OF REVIEW
affiliation with PACRRHD. Thus, Plaintiff could have
reasonably believed that he was engaging in protected activity We review a grant of summary judgment de novo. See
when he filed his EEOC complaint. Our holding in this Dinsmore Instrument Co. v. Bomardier, Inc., 199 F.3d 318,
regard represents the first in this Circuit dealing with general 320 (6th Cir. 1999). Summary judgment is appropriate where
advocacy rights under Title VII and § 1981 for a cabinet-level there exists no genuine issue of material fact and the moving
affirmative action/human resource vice-president. party is entitled to summary judgment as matter of law. Fed.
R. Civ. P. 56(c). As the moving parties, Defendants in this
Accordingly, having established that Plaintiff was engaged case bear the burden of showing the absence of a genuine
in a protected activity when he filed his complaint with the issue of material fact as to at least one essential element on
EEOC, Plaintiff has satisfied the first step of the inquiry into each of Plaintiff’s claims. See Celotex Corp. v. Catrett, 477
his prima facie case of retaliation. In light of the following U.S. 317, 324 (1986). Plaintiff, as the non-moving party,
evidence, which we view in the light most favorable to must then present sufficient evidence from which a jury could
Plaintiff, we believe that he has met the next two parts of his reasonably find for him. See Anderson v. Liberty Lobby, Inc.,
prima facie case. On December 5,1995, Plaintiff filed a 477 U.S. 242, 252 (1986). This test requires the Court to
complaint with the EEOC, alleging discrimination on the determine “whether the evidence presents sufficient
basis of race and advocacy of minority and women’s rights. disagreement to require submission to a jury or whether it is
On December 20,1995, Dr. Steger announced to the Cabinet so one-sided that one party must prevail as a mater of law.”
that Plaintiff had filed the EEOC charge and the Defendants Id. at 251-52. In making this determination, we accept all of
would have to defend themselves against the charges. That Plaintiff’s evidence as true and draw reasonable inferences in
same day, Dr. Steger promised to deliver a letter to Plaintiff his favor. See National Enters., Inc. v. Smith, 114 F.3d 561,
that outlined his standing with the University. On January 9, 563 (6th Cir. 1997).
1996, Dr. Steger sent Plaintiff a memorandum that
enumerated several problems with Plaintiff’s performance; III. SECTION 1981 AND TITLE VII CLAIMS
then, on January 17, 1996, Plaintiff received his termination
notice. As such, in addition to establishing that he engaged in A. Section 1981 and Section 2000e-2: Race and
a protected activity under Title VII by filing his EEOC National Origin Discrimination
complaint, Plaintiff also established that his filing was made
known to the University by Dr. Steger’s announcement at the In Count I of his complaint, Plaintiff alleges that
Cabinet meeting, and that Plaintiff suffered an adverse Defendants discriminated against him on the basis of race and
employment decision. national origin in violation of Title VII, 42 U.S.C. § 2000e-2.
Specifically, Plaintiff alleges that Defendants discriminated
In order to meet the final step of his prima facie case, against him because of his efforts to insure that the University
Plaintiff must establish a causal link between his filing of the complied with its affirmative action policies, and because of
EEOC claim and his termination. A causal link may be his advocacy on behalf of women and minorities. In Count
shown through knowledge combined with closeness in time IV of his complaint, Plaintiff alleges that Defendants violated
that creates an inference of causation. In order make such a his right to be free from discrimination and retaliation in the
showing, the plaintiff must produce sufficient evidence for a making and enforcement of contracts on the basis of race, and
reviewing court to infer that the employer would not have for his promotion of minorities and women, in violation of 42
taken the adverse action had the plaintiff not filed a U.S.C. § 1981.
14 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 31

A plaintiff may establish a claim of discrimination either by opposition clause, the district court found that Plaintiff did
introducing direct evidence of discrimination, or by proving not hold a good faith belief that he was engaging in protected
circumstantial evidence which would support an inference of activity when he filed his EEOC complaint, and that
discrimination. See Kline v. Tennessee Valley Auth., 128 F.3d Plaintiff’s claim on this issue thus failed as a matter of law.
337, 348 (6th Cir. 1997). “The direct evidence and the The district court reasoned that Plaintiff filed his claim with
circumstantial evidence paths are mutually exclusive; a the EEOC as a protective measure to insure the security of his
plaintiff need only prove one or the other, not both.” Id. job – because he was aware that Dr. Steger was not happy
Under the direct evidence approach, once the plaintiff with the manner in which Plaintiff handled the 925
introduces evidence that the employer terminated him because negotiations – and not because he reasonably believed that he
of his race or other protected status, the burden of persuasion was being discriminated against. Once again, we disagree
shifts to the employer to prove that it would have terminated with the district court.
the plaintiff even had it not been motivated by discrimination.
See Manzur v. Diamond Shamrock Chemicals Co., 29 F.3d In reaching its erroneous conclusion, the district court failed
1078, 1081 (6th Cir. 1994) (citing Price Waterhouse v. to liberally construe Plaintiff’s participation clause claim and
Hopkins, 490 U.S. 228, 244-45 (1989)). instead improperly resolved it as an issue of fact; specifically,
the district court improperly determined Plaintiff’s motive and
Under the circumstantial evidence approach, the familiar good faith in filing the charge. The district court’s conclusion
McDonnell Douglas-Burdine triparte test is employed. See is contrary to our decision in Booker:
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as
later clarified by, Texas Dep’t of Community Affairs v. The “exceptionally broad protections” of the
Burdine, 450 U.S. 248 (1981). This paradigm requires the participation clause extends to persons who have
plaintiff to establish a prima facie case of discrimination. See “participated in any manner” in Title VII proceedings.
McDonnell Douglas, 411 U.S. at 802. To establish a prima Pettway v. American Cast Iron Pipe Co., 411 F.2d 998,
facie case of discrimination, a plaintiff must show that 1) he 1006 (5th Cir. 1969). Protection is not lost if the
is a member of a protected class; 2) he was qualified for his employee is wrong on the merits of the charge, Womack
job and performed it satisfactorily; 3) despite his v. Munson, 619 F.2d 1292, 1298 (8th Cir. 1980), cert.
qualifications and performance, he suffered an adverse denied, 450 U.S. 979, 101 S. Ct. 1513, 67 L. Ed. 2d 814
employment action; and 4) that he was replaced by a person (1981), nor is protection lost if the contents of the charge
outside the protected class or was treated less favorably than5 are malicious or defamatory as well as wrong. Pettway,
a similarly situated individual outside his protected class. 411 F.2d at 1007. Thus, once activity in question is
See id.; Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. found to be within the scope of the participation clause,
1992). If the plaintiff is able to do so, a mandatory the employee is generally protected from retaliation.
presumption of discrimination is created and the burden shifts
to the defendant to “articulate some legitimate, Booker, 879 F.2d at 1312.
nondiscriminatory reason for the employee’s rejection.” Id.
Even if the district court had some basis for viewing
Plaintiff’s EEOC complaint as Plaintiff’s way of protecting
5 himself, this does not necessarily imply that Plaintiff did not
The elements of prima facie case as well as the allocations of the believe that he suffered retaliation for his advocacy prior to
burden of proof are the same for employment claims stemming from Title
VII and § 1981. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 the 925 negotiations. Plaintiff could have reasonably believed
(1993). that he had a viable discrimination claim on the basis of his
30 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 15

opposition clause through his claims that he opposed If the defendant carries this burden, then the plaintiff must
Defendant’s violations of Title VII, that Defendant knew of prove that the proffered reason was actually a pretext to hide
Plaintiff’s opposition, and that Plaintiff’s opposition was unlawful discrimination. Id. The plaintiff may establish that
causally related to his termination. See Walborn v. Erie the proffered reason was a mere pretext by showing that 1) the
County Care Facility, 150 F.3d 584, 588-89 (6th Cir. 1998). stated reasons had no basis in fact; 2) the stated reasons were
not the actual reasons; and 3) that the stated reasons were
To fully dispose of the remaining inquires under the insufficient to explain the defendant’s action. See Wheeler v.
McDonnell Douglas framework, we must also determine McKinley Enters., 937 F.2d 1158, 1162 (6th Cir. 1991). “A
whether Defendants offered a legitimate, nondiscriminatory reason cannot be proved to be ‘a pretext for discrimination’
reason for Plaintiff’s dismissal and whether Plaintiff can show unless it is shown both that the reason was false, and that
that the reasons were a mere pretext for retaliatory discrimination was the real reason.” St. Mary’s Honor Center
discrimination. Defendants offered the reasons outlined in v. Hicks, 509 U.S. 502, 515 (1993).
Dr. Steger’s memorandum sent to Plaintiff on January 9,
1996, wherein Dr. Steger evaluated Plaintiff’s performance, Here, the district court found that Plaintiff’s claim failed
as a non-exhaustive list of reasons for Plaintiff’s termination; under either the direct or circumstantial evidentiary pathways
however, Defendants contend that the primary reasons that because Plaintiff failed to show that he was a member of a
Plaintiff was terminated were his handling of the 925 protected group. The district court held that Plaintiff’s claims
negotiations and his overall poor administration of his failed as a matter of law because Plaintiff “postur[ed] his
department. In response, Plaintiff offered deposition protected status, not as a member of a racial minority, but
testimony which countered all of Defendants’ alleged reasons rather as a person who advocates on behalf of women and
for Plaintiff’s discharge, as well as evidence that other minorities.” The district court also held that Plaintiff’s claims
employees feared cooperating with the investigation into failed on these counts because as a high-level affirmative
Plaintiff’s termination because they anticipated reprisals. action official whose job responsibilities include advocating
minority rights, Plaintiff did not engage in protected activity
After careful review of the record, we hold that Plaintiff has when he engaged in such advocacy. In other words, the
created an issue of fact for the jury as to whether Defendants’ district court held that Plaintiff’s claims fell prey to summary
proffered reasons for Plaintiff’s discharge were merely judgment because Plaintiff could not claim protected status
pretextual by suggesting that Defendants’ justifications under § 1981 or § 2000e-2(a) only for his advocacy of women
possibly have no basis in fact or are insufficient to explain his and minorities. We disagree. This holding is based on an
discharge, and are not the true reasons for Plaintiff’s unmitigated assumption: that for a high-level affirmative
termination. We therefore reverse the district court’s grant of action official to have standing to sue under § 2002e-2(a) or
summary judgment to the University and Dr. Steger in his § 1981, it is necessary that the affirmative action official be
official capacity on Plaintiff’s claim brought under the black – or of some other recognized protected group – and
opposition clause of Title VII. that he allege discrimination against himself because of his
membership in a recognized protected group. This
2. The Participation Clause assumption is contrary to express Congressional intent behind
the enactment of Title VII and § 1981, as well as binding case
To establish a claim of retaliation under the participation law.
clause, Plaintiff must make a prima facie case by showing
that Defendants discharged him because he filed a claim with
the EEOC. As with Plaintiff’s claim brought under the
16 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 29

Section 2000e-2(a) of Title VII provides in relevant part as manner. Furthermore, in a letter dated September 21, 1995,
follows: sent by Plaintiff to Dr. Steger regarding Defendant’s desire to
waive advertising for the Vice-Chairman position, Plaintiff
It shall be an unlawful employment practice for an complained that “the apparent underutilization of minorities
employer – and women at the University Hospital and Medical College
demonstrates the lack of commitment or intent to create an
(1) to fail or refuse to hire or to discharge any equal playing field for qualified candidates, or the
individual, or otherwise to discriminate against any development of a mentorship program which would support
individual with respect to his compensation, terms, a safe learning environment for non-whites.” Unlike Booker
conditions, or privileges of employment, because of such v. Brown & Williamson Tobacco Co. Inc., where the plaintiff
individual’s race, color, religion, sex, or national origin was contesting a single decision made by his employer in a
.... letter which he sent to his employer’s human resource
department, Plaintiff in this case was opposing Defendant’s
42 U.S.C. § 2000e-2(a) (1994). Section 1981 provides in discriminatory hiring conduct as a whole. See 879 F.2d at
pertinent part that all persons shall have the same right “to 1312-13 (recognizing that the lawfulness of the employment
make and enforce contracts,” which thereby “includes the practice must be broadly construed, so that the person
making, performance, modification, and termination of opposing an apparently discriminatory practice does not bear
contracts, and the enjoyment of all benefits, privileges, terms, the risk that practice is in fact lawful); see also supra note 7.
and conditions of the contractual relationship.” 42 U.S.C. One example of Defendants’ discriminatory hiring practice
§ 1981 (1994). which Plaintiff opposed was Defendants’ decision not to
advertise for the Vice-Chairman position.
It is an established principle that Congress’ primary concern
in enacting the prohibition against racial discrimination in Accordingly, having established that he opposed conduct
Title VII of the Civil Rights Act of 1964 was the plight of the which he reasonably believed to be unlawful, and that
African American in our economic society. See United Steel Defendant was aware of Plaintiff’s opposition, Plaintiff also
Workers of Am. v. Kaiser Aluminum & Chemical Co., 443 provided evidence to show that his opposition was causally
U.S. 193, 201 (1979) (citing 110 Cong. Rec. 6548 (1964) related to his discharge. For example, Plaintiff’s complaints
(remarks of Sen. Humphrey) (stating that Title VII was led to a reply memoranda from Dr. Steger wherein he
“triggered by a Nation’s concern over centuries of racial criticized Plaintiff’s character and performance, and
injustice and intended to improve the lot of those who had approximately one month after Plaintiff filed his charge of
‘been excluded from the American dream for so long’”). It is discrimination with the EEOC, Dr. Steger informed Plaintiff
also well-established that affirmative action programs, which that he was being immediately removed from his position at
were born out of Title VII legislation, are an accepted means the University. See, e.g., EEOC v. Avery Dennision Corp.,
of correcting past and preventing future race discrimination in 104 F.3d 858, 861 (6th Cir. 1997); Moon v. Transport
the workforce both in the public and private sector. See id. at Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987); see also
204. Furthermore, the Supreme Court has long recognized discussion infra Part III.B.2. discussing the causal connection
that § 1981, originally enacted as part of the Civil Rights Act between Plaintiff’s filing of his EEOC complaint and his
of 1866, was intended to uproot the institution of slavery and termination in reference to his claim brought under the
to eradicate all of its badges, incidents, and vestiges. See participation clause. Thus, Plaintiff has demonstrated a prima
Jones v. Mayer, 392 U.S. 409, 422-37 (1968) (finding that facie case of retaliatory discrimination under Title VII’s
based upon the legislative history of the Civil Rights Act of
28 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 17

by anyone and it may be made to a co-worker, newspaper 1866, the broad language of the Act was not “a mere slip of
reporter, or anyone else about alleged discrimination against the legislative pen”).
oneself or others; the alleged discriminatory acts need not be
actually illegal in order for the opposition clause to apply; and Recently, in Tetro v. Popham, this Court recognized Title
the person claiming retaliation need not be the person VII’s broad reach, and held as a matter of first impression in
engaging in the opposing conduct. See EEOC Compliance this Circuit that “Title VII [was designed] to protect
Manual (CCH) ¶ 8006; see also See Booker, 879 F.2d at individuals who are the victims of discriminatory animus
1312-13 (holding that “[a] person opposing an apparently towards third persons with whom the individuals associate.”
discriminatory practice does not bear the entire risk that it is See 173 F.3d 988, 994 (6th Cir. 1999). Relying upon the
in fact lawful; he or she must only have a good faith belief Eleventh Circuit’s decision in Par v. Woodmen of the World
that the practice is unlawful”); Keys v. U.S. Welding, Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986), where it
Fabricating & Mfg., Inc., No. CV91-0113, 1992 WL 218302, was held that a white individual had standing and had stated
at *5 (N.D. Ohio Aug. 26, 1992) (noting that “[u]nder a viable cause of action under Title VII for discrimination
§ 704(a) of Title VII, [the plaintiff] needed only a ‘good faith based upon an interracial marriage, the Tetro court found that
belief’ that the company practice about which he was a white employee had standing and had stated a viable cause
complaining violated Title VII; it is irrelevant whether the of action against his former employer under Title VII where
allegations are ultimately determined to violate Title VII”). the white employee was discharged because his child was
biracial. See Tetro, 173 F.3d at 994. The Court reasoned that
Therefore, it logically follows that the district court’s “[a] white employee who is discharged because his child is
conclusion, that as a high-level affirmative action official biracial is discriminated against on the basis of his race, even
Plaintiff could not claim protected status under the opposition though the root animus for the discrimination is a prejudice
clause for his advocacy on behalf of women and minorities, against the biracial child.” Id. The Court based its reasoning
runs counter to the broad approach used when considering a on Title VII’s broad remedial purpose and the fact that the
claim for retaliation under this clause, as well the spirit and statute is worded such that it “simply prohibits discrimination
purpose behind Title VII as a broad remedial measure. By ‘because of such individual’s race’[;] [t]here is no mention of
extending the scope of Holden, the district court allows for an the words ‘directly’ or ‘indirectly’ in the statute.” Id. at 995.
employer to retaliate against the person best able to oppose Thus, the Court went on to hold that Title VII protects
the employer’s discriminatory practices — the “high-level individuals who are the victims of invidious discrimination
affirmative action official” — without fear of reprisal under towards third persons with whom the individual associates.
Title VII. Indeed, the individual who has contracted to Id. at 994. Simply put, this Court has now spoken that in
advocate on behalf of women and minorities has not thereby order to state a cognizable claim under Title VII, the plaintiff
contracted to be retaliated against for his advocacy. himself need not be a member of a recognized protected class;
he need only allege that he was discriminated on the basis of
In addition, the actions taken by Plaintiff in response to his association with a member of a recognized protected class.
hiring decisions which he felt were discriminatory and not in See id.; see also Troy v. Suburban Management Corp., No.
line with the A-900 process were sufficient to constitute 89-1282, 1990 WL 97490, at **5 (6th Cir. July 13, 1990);
opposition under Title VII. For example, Plaintiff sent letters Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d
to Dr. Steger voicing his objections to the hiring of Mr. Cohen 581, 589 (5th Cir. 1998) (finding as a matter of first
and the Vice-Chairman of the Department of Surgery on the impression that Title VII proscribes discrimination in
grounds that these individuals were hired in a discriminatory employment against a woman for her relationship with a
18 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 27

black man), vacated and reinstated in part en banc, 182 F.3d against employer retaliation for opposing any practice that the
333 (5th Cir. 1999). employee reasonably believes to be a violation of Title VII.
The Equal Employment Opportunity Commission (“EEOC”)
Similarly, in Winston v. Lear Siegler, Inc., 558 F.2d 1266, has identified a number of examples of “opposing” conduct
1270 (6th Cir. 1997), this Court addressed as a matter of first which is protected by Title VII, including complaining to
impression, “the issue of whether or not the white plaintiff in anyone (management, unions, other employees, or
this action has standing to sue his former employer under newspapers) about allegedly unlawful practices; refusing to
§ 1981 for discharging him in alleged retaliation for plaintiff’s obey an order because the worker thinks it is unlawful under
protesting the alleged discriminatory firing of a black co- Title VII; and opposing unlawful acts by persons other than
worker . . . .” In holding that the white plaintiff did in fact the employer — e.g., former employers, union, and co-
have standing to sue under such circumstances, the Court workers. EEOC Compliance Manual, (CCH) ¶ 8006.8 The
noted that although the white plaintiff “was not fired because EEOC has qualified the scope of the opposition clause by
of his race, it was a racial situation in which he became noting that the manner of opposition must be reasonable, and
involved that resulted in his discharge from his employment, that the opposition be based on “a reasonable and good faith
id. at 1268, and that Congress’ intent behind the enactment of belief that the opposed practices were unlawful.” Id. In other
§ 1981 – to eradicate the badges and incidents of slavery – words, a violation of Title VII’s retaliation provision can be
were best served by such a holding. Id. at 1270; see Alizadeh found whether or not the challenged practice ultimately is
v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986) found to be unlawful. Id. Moreover, the person claiming
(Ҥ 1981 provides a cause of action to a white spouse who retaliation need not be the person who engaged in the
alleges that he was discriminated against in employment opposition, such that “Title VII . . . prohibit[s] retaliation
because of his marriage to a nonwhite.”) against someone so closely related to or associated with the
person exercising his or her statutory rights that it would
Therefore, based upon this well-settled state of the law, it discourage that person from pursuing those rights.” Id.
is clear that Plaintiff need not have alleged discrimination
based upon his race as an African American in order to satisfy In short, the only qualification that is placed upon an
the protected status requirement of his claims. Indeed, in employee’s invocation of protection from retaliation under
light of this Court’s holding in Tetro and Winston, the fact Title VII’s opposition clause is that the manner of his
that Plaintiff has not alleged discrimination because of his opposition must be reasonable. Of critical import here is the
race is of no moment inasmuch as it was a racial situation in fact that there is no qualification on who the individual doing
which Plaintiff became involved – Plaintiff’s advocacy on the complaining may be or on the party to whom the
behalf of women and minorities in relation to Defendant’s complaint is made known — i.e., the complaint may be made
alleged discriminatory hiring practices – that resulted in
Plaintiff’s discharge from employment. See Tetro, 173 F.3d
at 994-95; Winston, 558 F.2d at 1268; see also Parr, 791 F.2d
8
at 892 (holding that “[w]here a plaintiff claims discrimination Pursuant to the Supreme Court’s directive, the EEOC’s
[in a Title VII action] based upon an interracial marriage or interpretation of Title VII is to be given “great deference” by the courts.
association, he alleges, by definition, that he has been See Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971); see also Tetro,
173 F.3d at 994 (relying upon the EEOC’s interpretation of Title VII in
discriminated against because of his race”). Although support of the Court’s holding); Ladd v. Sertoma Handicapped
obviously not anticipated by the district court’s flawed Opportunity Program, Inc., 917 F. Supp. 766, 767 (N.D. Okla. 1995)
reasoning, it is clear that a Caucasian high-level affirmative (finding that “[a]lthough not binding on this Court, the EEOC’s position
on a subject squarely within its field of expertise is significant”).
26 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 19

engaged in protected activity in reference to either claim. We action official could bring a claim under § 1981 and § 2000e-
disagree, and will address each of Plaintiff’s claims in turn. 2(a) for discrimination based upon his advocacy on behalf of
minorities because the discrimination would be “because of
1. The Opposition Clause such individual’s race,” where the race of the minorities for
which he was advocating would be “imputed” if you will to
In conjunction with his allegations that his termination was the Caucasian high-level affirmative action official. See
discrimination for his advocacy on behalf of women and Tetro, 173 F.3d at 995.
minorities, Plaintiff similarly contends that the University
retaliated against him for his advocacy efforts in opposition Furthermore, Plaintiff’s efforts to advocate for the A-900
to Defendants’ alleged unlawful employment practices. The process in the face of Defendants’ alleged discriminatory
district court found that Plaintiff’s claim failed at the practice is clearly the type of conduct protected by § 1981 and
inception because, as an affirmative action official, Plaintiff Title VII so as to provide Plaintiff standing. For example, in
could not have reasonably believed that the conduct he was Sullivan v. Little Hunting Park, Inc., a case “which involve[d]
opposing was protected activity. Relying upon Holden v. an alleged discrimination against a Negro family in the use of
Owens-Illinois, 793 F.2d 745, 748-49 (6th Cir. 1986), the certain community facilities,” the Supreme Court found that
district court reasoned that because attempts to implement an a Caucasian homeowner had standing to sue under 42 U.S.C.
affirmative action program that complies with Executive § 1982 when he was expelled from a corporation organized to
Order 11246 are not protected by Title VII, and because operate a community park facility for his “advocacy” on
Plaintiff is presumed to know the state of the law, it follows behalf of allowing an African-American male and his family
that Plaintiff could not have reasonably believed that he was to participate in the park facilities. See 396 U.S. 229, 231-37
opposing conduct that is protected under Title VII, and that (1969). Specifically, in Sullivan, the Court was faced with the
his claim brought under this clause therefore failed. We find following facts:
the district court’s application and extension of Holden to the
facts of this case contrary to Title VII’s intent. Little Hunting Park, Inc., is a Virginia nonstock
corporation organized to operate a community park and
As accurately argued by Plaintiff, the scope of Holden playground facilities for the benefit of residents in an
extends only to an employee who protests the implementation area of Fairfax County, Virginia. A membership share
of the affirmative action program; because Plaintiff protested entitles all persons in the immediate family of the
discrimination that occurred in the hiring process, which was shareholder to use the corporation’s recreation facilities.
contrary to law as well as the affirmative action program, his Under the bylaws a person owning a membership share
case falls beyond Holden’s reach. To hold otherwise would is entitled when he rents his home to assign the share to
improperly expand the scope of Holden to include not only his tenant, subject to approval of the board of directors.
the employee who protests an employer’s failure to implement Paul E. Sullivan and his family owned a house in this
an affirmative action program under Title VII, but also the area and lived in it. Later he bought another house in the
employee who opposes discrimination that occurs in the area and leased the first one to T. R. Freeman, Jr., an
hiring process the likes of which the affirmative action employee of the U.S. Department of Agriculture; and
program was designed to correct and prevent. assigned his membership to Freeman. The board refused
to approve the assignment because Freeman was a Negro.
Furthermore, the fact that Plaintiff may have had a Sullivan protested that action and was notified that he
contractual duty to voice such concerns is of no consequence would be expelled from the corporation by the board. A
to his claim. Under Title VII, an employee is protected
20 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 25

hearing was accorded and he was expelled, the board 42 U.S.C. § 2000e-3(a) (1994). Thus, this section prohibits
tendering him cash for his two shares. an employer from retaliating against an employee who has
“opposed” any practice by the employer made unlawful under
Id. at 234-35. When Sullivan and Freeman sued Little Park Title VII; and prohibits an employer from retaliating against
Hunting, Inc. under § 1981 and § 1982, the trial court denied an employee who has “participated” in any manner in an
relief to each petitioner. Id. investigation under Title VII. See Booker v. Brown &
Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir.
In reversing the trial court’s decision, the Supreme Court 1989); see also Morris v. Oldham County Fiscal Court, 201
held as to Freeman that he had stated a cause of action under F.3d 784, 791-92 (6th Cir. 2000). In Count V of his
§ 1982 inasmuch as he had paid a monthly rental for complaint, Plaintiff claims that Defendants discriminated
Sullivan’s assignment of the membership share in Little against him because he “opposed” the hiring of individuals in
Hunting Park, and therefore the transaction in which Freeman conflict with the A-900 process; and that Defendants
engaged was clearly a “lease” transaction protected by § 1982. terminated him in retaliation for Plaintiff’s “participation” in
Id. at 236-37. The Supreme Court reasoned as follows: filing an EEOC claim.
The right to ‘lease’ is protected by § 1982 against the To establish a claim under either clause, Plaintiff must meet
actions of third parties, as well as against the actions of the test of a slightly modified McDonnell Douglas framework
the immediate lessor. Respondents’ actions in refusing by showing that: 1) he engaged in activity protected by Title
to approve the assignment of the membership share in VII; 2) this exercise of protected rights was known to
this case was clearly an interference with Freeman’s right Defendants; 3) Defendants thereafter took an adverse
to ‘lease.’ A narrow construction of the language of employment action against Plaintiff, or Plaintiff was
§ 1982 would be quite inconsistent with the broad and subjected to severe or pervasive retaliatory harassment by a
sweeping nature of the protection meant to be afforded supervisor; and 4) there was a causal connection between the
by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from protected activity and the adverse employment action or
which § 1982 was derived. harassment. See Morris, 201 F.3d at 792 (citing Canitia v.
Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.
Id. at 237 (emphasis added) (citing Jones v. Alfred H. Mayer 1990)). If Plaintiff establishes a prima facie case under either
Co., 392 U.S. 409, 422-37 (1968)). The Supreme Court then clause, then the burden shifts to Defendants to articulate a
found as follows regarding Sullivan’s standing to bring his legitimate, nondiscriminatory reason for Plaintiff’s discharge.
claims: Id. (citing McDonnell Douglas, 411 U.S. at 802). Plaintiff
must then demonstrate that the proffered reason was not the
We turn to Sullivan’s expulsion for the advocacy of true reason for the employment action – i.e., that the reason
Freeman’s cause. If that sanction, backed by a state was a mere pretext for discrimination. Id. (citing Burdine,
court judgment, can be imposed, then Sullivan is 450 U.S. at 256).
punished for trying to vindicate the rights of minorities
protected by § 1982. Such a sanction would give In this case, the district court found that Plaintiff’s claims
impetus to the perpetuation of racial restrictions on brought under both the opposition clause and the participation
property. That is why we said in Barrows v. Jackson, clause of § 2000e-3(a) failed as a matter of law because
346 U.S. 249, 259 [(1953)], that the white owner is at Plaintiff could not have held a good faith belief that he was
times ‘the only effective adversary’ of the unlawful
restrictive covenant. Under the terms of our decision in
24 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 21

and equality in employment. The approach that is in line with Barrows, there can be no question but that Sullivan has
§ 1981 and Title VII’s broad remedial purpose, as well as the standing to maintain this action.
case law in support thereof, is to allow the jury to decide
whether the high-level affirmative action official was Sullivan, 396 U.S. at 237 (emphasis added).
discriminated against for his “advocacy” on behalf of women
and minorities, irrespective of whether the advocacy was part Likewise, in the case at hand, Plaintiff alleged in his
of the official’s contractual duties. That is not to say that complaint that he was sanctioned or punished when, among
every job-related action undertaken by a high-level other things, University officials “excluded him from
affirmative action official should be considered protected decisions and policies affecting the West campus and the
conduct. However, when the action undertaken by the official Alliance . . . because of Plaintiff’s support of affirmative-
is the advocacy of hiring practices that do not discriminate on action policies and minority hires[]” protected under Title VII
the basis of race, sex, or ethnicity — such as Plaintiff’s and § 1981. See Plaintiff’s Amended Complaint, ¶ 21; J.A.
advocating a nondiscriminatory hiring practice in line with the at 100027. Plaintiff also alleged that he was sanctioned or
A-900 process — the advocacy can indeed be considered punished for his advocacy on behalf of female and minority
protected conduct under Title VII and § 1981, and a jury hires through his termination, or “expulsion” if you will, from
should decide whether a defendant employer has employment by the University. See id., ¶ 28; J.A. at 100029.
discriminated or retaliated against the high-level affirmative As in Sullivan, if these “sanctions” were allowed to go
action official for this advocacy. unredressed, it would give impetus to the perpetuation of
racial and minority discrimination in hiring which Title VII of
In every civil rights action it is the responsibility of the jury the Civil Rights Act of 1964, affirmative action programs, and
determine whether the defendant’s actions were invidious, § 1981, were designed to prevent. See Kaiser Aluminum &
pretextual, or improperly motivated. This case is no different. Chemical Co., 443 U.S. at 201; Sullivan, 396 U.S. at 237;
We therefore reverse the district court’s grant of summary Winston, 558 F.2d at 1270 (finding that the Supreme Court’s
judgment to the University and Dr. Steger in his official holding in Sullivan, while directed to § 1982, was applicable
capacity on Plaintiff’s claims brought under § 2000e-2, and to to § 1981 inasmuch as both statutes were originally enacted
Dr. Steger and Dr. Harrison individually on Plaintiff’s claims as part of the Civil Rights Act of 1866 and were designed
brought under § 1981. with the same purpose in mind: “to uproot the institution of
slavery”)6.
B. Section 2000e-3(a): Retaliation Discrimination
under the Opposition & Participation Clauses
6
Section § 2000e-3(a) provides in relevant part as follows In light of Sullivan, and in light of Winston’s holding that Sullivan
is applicable to § 1981 claims, the dissent’s contention that the majority
cannot point to any case where general advocacy of minority rights has
It shall be an unlawful employment practice for an been found to violate either § 1981 or Title VII, is unfounded.
employer to discriminate against any of his employees Furthermore, as stated throughout this opinion, simply because it was
. . . because [the employee] has opposed any practice Plaintiff’s job to insure that Defendants did not engage in discriminatory
made an unlawful employment practice by this hiring practices the likes of which Defendants had previously been found
subchapter, or because he has made a charge, testified, to employ, does not thereby immunize Defendants from retaliating against
assisted, or participated in any manner in an Plaintiff for doing his job. Obviously, the dissent’s question as to how
the situation would differ if the advocacy was for a plan that failed to
investigation, proceeding, or hearing under this meet the standard of Croson v. City of Richmond, 478 U.S. 1016 (1986)
subchapter. is rhetorical. If an employee was retaliated against by his employer for
22 Johnson v. Univ. of Cincinnati, et al. No. 98-3016 No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 23

Contrary to the district court’s assertion, Plaintiff’s status indeed, to violate law which was designed to serve “as a spur
as a high-level affirmative action official does not change the or catalyst to cause ‘employers and unions to self-examine
fact that his advocacy on behalf of women and minorities is and to self-evaluate their employment practices and to
protected activity or that he is a member of a protected class. endeavor to eliminate, so far as possible, the last vestiges of
Simply because the employer has placed an individual in the an unfortunate and ignominious page in this country’s history
position of a high-level affirmative action officer and . . . .’” Kaiser Aluminum & Chem. Corp., 443 U.S. at 204
contracted with the individual to advocate on behalf of (quoting Albemarle Paper Co. v. Moody, 442 U.S. 405, 418
women and minorities to insure equality in employment (1975)).
within the institution, does not thereby immunize the
employer from being held liable for illegally discriminating Therefore, having found that Plaintiff was indeed a member
against that individual for such advocacy. To hold otherwise of protected class, and that he proffered direct evidence that
would allow an institution to contract with an individual for he was discriminated against because of his advocacy, we
the position of a “high level affirmative action official;” put believe that a question of fact exists for the jury to decide
into place an allegedly nondiscriminatory hiring practice such whether Defendants 7 terminated Plaintiff out of a
as the A-900 process; circumvent the hiring process against discriminatory animus. The district court’s approach to this
the express advocacy and advice of the affirmative action matter turns back the hands of time on the issue of civil rights
official; and discriminate or retaliate against the affirmative
action official for his advocacy, thus sending a message to the
official that he either remain silent or be “punished.” 7
An example of such direct evidence offered by Plaintiff is taken
Said differently, an employer inclined to engage in from Plaintiff’s deposition testimony made in response to the question of
whether Dr. Steger, in Plaintiff’s view, expressed race consciousness in
invidious discrimination in the workplace could hire an making hiring decisions:
affirmative action official in order to convey the false During the search for the provost at the University, I made
impression that the employer is interested in eliminating a recommendation to Dr. Steger that proactive consideration be
illegal discrimination from the workplace, and proceed to given to Dean Castenell; that based upon the candidates being
retaliate against the official secure in the knowledge that no brought into the University from outside that I felt Dean
Castenell had more experience and would be more effective.
legal claim could be lodged against the employer for its Dr. Steger’s response was, “We already have two black vice
actions. Thus, to hold that a high-level affirmative action presidents. I can’t bring in a black provost.” My response was,
official cannot bring a Title VII claim for discrimination “Dr. Steger, you’re the President of the University, and it’s my
based upon his or her advocacy of women and minorities expectation that you demonstrate the issues and concerns in
would be to invite stratagems designed to circumvent, and staffing is that we get the best person available, not the fact that
you’ve got three senior black officers.” His response was,
“Faculty would kill me if I would bring in a black provost,
particularly with us already having two black vice presidents at
speaking out on behalf of minorities, whether or not a plan met the the University.”
standard of Croson, the employee may have a viable claim – irrespective That was a very disturbing response, to me, for a president
of the employee’s race or ethnicity -- under § 1981 or Title VII. See to be making to the Vice President of Human Resources, when
Sullivan v. Little House Park, Inc., 396 U.S. 229, 231-37 (1969); Tetro v. I had been charged always to ensure that we hire the best person
Popham, 173 F.2d 988, 994 (6th Cir. 1999); Winston v. Lear Siegler, Inc., possible and that we always identify a diverse pool of candidates
558 F.2d 1266, 1270 (6th Cir. 1997). Indeed, the Supreme Court found and that we give full consideration to them based upon
Sullivan’s “advocacy . . . for trying to vindicate the rights of minorities” experience, their expertise, and whether they would be able to do
to be protected conduct such that Sullivan had standing to sue. See the job or not.
Sullivan, 396 U.S. at 237. (J.A. at 100737-38.)