John B. Johnson v. University of Cincinnati, Joseph A. Steger, and Donald C. Harrison

KENNEDY,

concurring in part and dissenting in part.

While I agree with the majority’s resolution of the immunity issues and Dr. Johnson’s retaliation claim under the participation clause, I dissent from the majority opinion because I disagree with the majority’s resolution of the rest of the plaintiffs claims. In particular, I disagree with the majority’s analysis of the plaintiffs claims under Title VII and § 1981. I also dissent from the majority’s decision on the plaintiffs First Amendment claims.

The majority holds that the plaintiff presented direct evidence of the defendants’ discrimination through his testimony concerning University officials’ expressions of race consciousness during the hiring process. This testimony, however, does not provide direct evidence of the defendants’ discrimination against the plaintiff based on his advocacy of minority rights.1 Because plaintiffs claim is based on his advocacy, the direct evidence of discrimination also must concern advocacy. I find no direct evidence in the record establishing that any of the defendants discriminated against the plaintiff based on his advocacy; therefore, the plaintiffs claim can survive only if he can establish a prima facie case of discrimination under the McDonnell Douglas-Burdine test. As stated in the majority opinion, the plaintiff must show that (1) he is a member of a protected class; (2) he was qualified for his job; (3) he suffered an adverse employment action; and (4) he was replaced by someone outside the protected class or was treated differently than a similarly situated individual outside the protected class. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). I do not believe that the plaintiff has satisfied either the first or fourth prong of this test. In my discussion of plaintiffs retaliation claim under the opposition clause of Title VII, I ad*587dress the plaintiffs status as a member of a protected class. For purposes of this analysis, I will limit my dissent to the plaintiffs failure to establish the existence of the fourth prong, although I believe that my analysis of plaintiffs protected status below applies equally to these claims. The protected class to which the plaintiff claims membership can be classified as the class of advocates for minorities. The plaintiff has presented no evidence to establish either that he was replaced by someone who was not an advocate for minorities or that other “non-advocates” who were similarly situated were treated differently. The plaintiffs has failed to establish a prima facie case of discrimination; therefore, his section 1981 claims against Dr. Steger and Dr. Harrison in their individual capacity and his section 2000e-2 claims against the University and Dr. Steger in his official capacity cannot survive.

I also am at a loss as to how the majority can sustain plaintiffs § 1981 claim against Dr. Harrison in his individual capacity. The plaintiff has presented no evidence that Dr. Harrison influenced the University and its officials in the decision to relieve the plaintiff of his duties. In his brief to this court, the plaintiff does not even address the viability of his § 1981 claim against Dr. Harrison. Instead, he focuses his argument on Dr. Steger’s role in his dismissal. I believe the plaintiff chose this tactic because there were no grounds upon which to find Dr. Harrison liable for a § 1981 violation and I believe that it is error for this court not to dismiss plaintiffs § 1981 claim against Dr. Harrison in his individual capacity.

Plaintiffs claims under § 1981 and § 2000e-2 of Title VII, along with plaintiffs retaliation claim under the opposition clause of Title VII, also fail because plaintiff has failed to establish that he is a member of a protected class. Although the majority attempts to show that it has been long established that an advocate for a minority who has been discriminated against is protected under Title VII and § 1981,1 believe that the majority’s analysis of our prior cases is fundamentally flawed. I agree with the majority that individuals are permitted to pursue claims of discrimination based on their advocacy of another person’s rights, but, in all of these cases, the individual is advocating upon the behalf of a specific individual or specific individuals whose constitutional rights or Title VII rights have been violated. Plaintiffs claim is not based on his advocacy of specific individuals, but rather, he claims protected class status based on his general advocacy. When we extend protected class status to individuals like the plaintiff, we undermine the protections afforded by Title VII and the Constitution. Plaintiffs claim against the University and its employees basically boils down to a disagreement over the implementation of an affirmative action program. This Circuit, in Holden v. Owens-Illinois, 798 F.2d 745, 751 (6th Cir.1986), held that an employee does not obtain protected status simply because the employee handles affirmative action matters in the course of employment. I do not believe this case can be distinguished from Holden. An affirmative action official’s job is to advocate on behalf of minorities and the majority’s holding that when an affirmative action official disagrees with his employer he has a cause of action under Title VII creates a disincentive for employers in their decision to establish an affirmative action officer position. The majority attempts to distinguish Holden by stating that the plaintiff was not protesting the implementation of an affirmative action program, but rather, he was protesting discrimination in hiring. In reality, there is no distinction. The plaintiff contends that he was terminated for his active advocacy on behalf of minorities, yet, this was his job. If he was not performing his job to the satisfaction of his employers, the University is entitled to dismiss him. The plaintiff has presented no evidence that his advocacy went beyond the scope of his employment, and I believe this is significant. I do think that the plaintiffs employment as *588a high level affirmative action officer does and should make a difference in the analysis of his claims. Because it was his job to advocate on behalf of minorities I do not think he is entitled to protected status for his general advocacy on behalf of minorities. For this reason, I believe that the defendants are entitled to summary judgment on plaintiffs claims under section 1981, section 2000e-2 of Title VII and the opposition clause of section 2000e-3(a)Title VII.2 Because the plaintiffs claim under the participation clause of section 2000e-3(a) should be liberally construed and his termination occurred in close proximity to his filing of an EEOC claim while complaints with respect to his performance occurred over an extended period, I agree with the majority that the district court erred in granting summary judgment on this claim.

Finally, I turn to plaintiffs claims under the First 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 communications are within the organization. In his position at the University, the plaintiffs job was to advocate on behalf of minorities. Technically, every word that the plaintiff spoke during his tenure in this position concerned affirmative action because of the nature of his job. In the unique circumstances of this case, I do not think that the plaintiff is entitled to the protections of the First Amendment unless he can show that his speech was not integrally connected with his job. When considering whether an employee’s speech is protected by the First Amendment, this Supreme Court has adopted a two part inquiry. First, the Court asks whether the speech was of public concern. If that question is answered in the affirmative, the next question is whether the plaintiffs interest in speaking outweighed the defendant’s interest in regulating his speech. See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). In this case, I do not think that the inquiry can be separated into two steps. Instead, the two steps merge when the employee’s position requires him to speak on issues that normally would be of public concern. Because the plaintiffs speech concerned the inner workings of the 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 member as Vice President of Human Relations), I think that 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 to the confines of the University and con*589veyed his views in his official position as to the success or lack of success of the University’s affirmative action program. I believe that in this situation the plaintiffs speech is not entitled to First Amendment protections. I think that the district court did not err in granting summary judgment in favor of the defendants on plaintiffs First Amendment claims.

. In his brief to this court, the plaintiff identified three issues for review. His claims under Title VII, § 1981, and the First Amendment were couched in terms of his advocacy upon behalf of minorities. In particular, his brief states the issues as follows:

"2. Whether, for Mr. Johnson’s Title VII and 42 U.S.C. § 1981 claims, he had a protected status because he advocated minority rights.”
”3. Whether, for Mr. Johnson's First Amendment retaliation claim, the importance of his advocacy of minority rights outweighed UC’s interest in maintaining the operation of its affairs.”

In addition, his complaint to the EEOC stated:

The university employs me as the Vice President for Human Resources. The institution has obstructed me from performing my assignment as the executive authorized for planning and operating human resource systems for the east and west ...
President Joseph Stegar tells me that I am authorized to perform my executive level duties, but he also fails to give me adequate support for my position on both campuses.

The plaintiff does not raise any issues contending that he experienced discrimination based on his race or national origin and any attempt to construe his claim as anything but a claim based on his advocacy of 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 no evidence connecting his advocacy on behalf of these specific individuals to his discharge.

. 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 and disagreement over the President's use of the waiver for particular jobs, the plaintiffs claim is even more murky. Plaintiff has not claimed 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 own behalf in the District Court, he has not appealed its dismissal. His disagreement with the University related to the implementation of its affirmative action plan, a plan the University maintained even though the term of the plan had expired and which was adopted without any finding or admission of discrimination.

The failure to hire the African-American candidate as head of the Alliance hospitals was not even covered by the affirmative action plan. Nor did Dr. Steger participate in it.

The majority can point to no case where discrimination based on 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 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)?