Collin v. Rectors and Visitors

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT W. COLLIN,
Plaintiff-Appellant,

v.

RECTORS AND VISITORS OF THE
UNIVERSITY OF VIRGINIA, Department
No. 96-1078
of Urban and Environmental
Planning; WILLIAM LUCY; DAVID
PHILLIPS; A. BRUCE DOTSON;
RICHARD COLLINS; DAPHNE SPAIN;
TIMOTHY BEATLEY; HARRY PORTER,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
B. Waugh Crigler, Magistrate Judge.
(CA-93-74-C)

Submitted: April 21, 1998

Decided: August 31, 1998

Before NIEMEYER and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Margaret M. Cain, Charlottesville, Virginia, for Appellant. Earl C.
Dudley, Jr., Associate General Counsel & Special Assistant Attorney
General, Lee E. Goodman, Associate General Counsel & Special
Assistant Attorney General, UNIVERSITY OF VIRGINIA, Char-
lottesville, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Robert W. Collin was a tenure-track faculty member of the Depart-
ment of Urban and Environmental Planning in the University of Vir-
ginia's School of Architecture. Despite renewing Collin's initial
appointment, at the end of Collin's evaluation period, the faculty of
the School did not extend Collin an offer of tenure. Collin appealed
this decision directly to the Provost. With the aid of two of the mem-
bers of the Promotion and Tenure Committee, Provost Thomas Jack-
son conducted a de novo review of Collin's record. Based on the
reviews of Collin's body of academic work by the committee mem-
bers, Provost Jackson's own review of Collin's work, and the consen-
sus of the Provost's eleven-member Promotion and Tenure
Committee, Provost Jackson denied Collin's request for tenure.

As a result of this decision, Collin filed this action alleging that the
University of Virginia and several of its faculty members had engaged
in racial discrimination in the tenure decision process. In addition,
Collin alleged that the tenure decision and other unfavorable employ-
ment decisions, such as office placement, computer service, telephone
service, funding decisions, research decisions and the threat of a
harassment action were in retaliation for Collin's participation in vari-
ous protected activities. Collin placed special emphasis on a letter
from the chair of the Urban and Environmental Planning Department
at the University of Virginia to his counterpart at the University of
Oregon where Collin was applying for a position. In that letter, the
chair described Collin's recent behavior as "bizarre" and "inconsis-

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tent." Collin filed a motion for partial summary judgment on this evi-
dence of retaliation alone. However, on the Defendant's motion, the
magistrate judge granted summary judgment in favor of the Univer-
sity and its faculty and dismissed the action. This appeal followed.

This court reviews grants of summary judgment in discrimination
cases de novo. See Jones v. Wellham, 104 F.3d 620, 626 (4th Cir.
1997). Summary judgment is properly granted if the movant can show
that there is no material fact in dispute when viewing the evidence in
the light most favorable to the nonmovant. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256-57 (1986).

To establish a prima facie case of discriminatory discharge, Collin
must show: (1) he is a member of a protected class; (2) he was quali-
fied for the job and performed satisfactorily; (3) in spite of his qualifi-
cations and performance, he was discharged; and (4) the position
remained open to similarly qualified applicants after his dismissal.
See Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). This case is
somewhat unusual in that Collin himself is white; his basis for claim-
ing membership in a protected class is that his wife is African-
American. Hampered by the parties' failure to provide any judicial
authority, persuasive or otherwise, the magistrate judge concluded
that Collin's marriage was not sufficient to qualify him as a member
of a protected class. As a result, the magistrate judge held that Collin
could not make out a prima facie case of discriminatory discharge.

Although the parties did not err in asserting that this court has no
published authority directly on point, it is generally accepted that the
spouses of members of protected parties may be able to make out a
prima facie case of discriminatory discharge. See Parr v. Woodmen
of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986); see
also Fiedler v. Marumsco Christian Sch., 631 F.2d 1144, 1150 (4th
Cir. 1980) (reaching a similar conclusion in a case under 42 U.S.C.
§ 1981 (1994)). That is true because the plaintiff is alleging "by defi-
nition, that he has been discriminated against because of his race."
Parr, 791 F.2d at 892.

Prudently, the magistrate judge did not rest his decision solely on
this conclusion. The magistrate judge also determined that Provost
Jackson's decision, untainted as it was by any hint of racial bias,

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broke any chain of causation from Collin's evidence of bias regarding
the tenure decision at the Departmental level.

Especially in light of the "great trepidation" with which federal
courts act in the consideration of tenure decision discrimination
claims by aggrieved professors, Collin has failed to made out a prima
facie case of discriminatory discharge. See Jiminez v. Mary Washing-
ton College, 57 F.3d 369, 376-77 (4th Cir. 1995). We "operate with
reticence and restraint regarding tenure-type decisions" resulting in a
necessarily narrow review. Id. at 377. Consequently, we must deter-
mine only whether Collin's promotion was denied because of a dis-
criminatory reason. Id.

The record is bereft of evidence that the ultimate decision-making
party, the Provost, reached his decision based on anything other than
academic reasons. Collin admitted in his deposition that he had no
evidence of an impermissible motivation on Provost Jackson's part.
The record shows that Provost Jackson considered Collin's scholar-
ship to be of inferior quality. This opinion did not stem from any dis-
criminatory determination. Rather, it was based on Jackson's own
review of Collin's body of work in combination with the review of
other members of the Promotion and Tenure Committee. Without act-
ing as a "super personnel council," and without a hint of reliance on
a discriminatory reason by this body, we cannot find that Collin
advanced a prima facie case of discriminatory discharge. Id. at 376.

On appeal, Collin claims that the Provost's review was not "un-
tainted." He suggests that because the Provost, in his capacity as the
Dean of the Law School, did not extend an offer of faculty employ-
ment to Collin's wife, he could not have afforded Collin's candidacy
an independent review. Collin also suggests that because Provost
Jackson ultimately declined to offer Collin tenure, the Provost's
review was not independent. Finally, Collin contends that because
Provost Jackson appointed the magistrate judge who decided this case
to the faculty of the University of Virginia School of Law at some
time before this lawsuit was ever contemplated, the Provost's review
was not independent. This line of argument mistakes our limited
review. The inquiry is not to determine whether the final decision-
maker was "independent," but rather, whether the decision was made
for a discriminatory reason. There is simply no evidence that it was.

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Similarly, Collin invites this court to reweigh the merits of his
scholarship against its deficiencies seeking a more favorable decision
from this court than from his colleagues. We decline to do so. We are
surely not as qualified to evaluate the quality of Collin's research and
writing in the context of the standards of the Department of Urban
and Environmental Planning in the School of Architecture at the Uni-
versity of Virginia as its own faculty. Furthermore, it is not the role
of the federal court to assess the quality of a professor's scholarly
work. In the absence of evidence of a discriminatory reason, there is
no cause to conclude that the University's decision was in violation
of Title VII.

Turning to Collin's claim of retaliation for his protected activities,
in order to establish a prima facie case of retaliation, Collin must
prove: (1) he engaged in a protected activity; (2) the University took
adverse employment action against him; and (3) a causal connection
existed between the protected activity and the adverse action. See
Carter, 33 F.3d at 460. The magistrate judge concluded that all events
described by Collin as retaliatory were explained by legitimate non-
discriminatory reasons that were rebutted only by Collin's claims that
they were racially motivated. See, e.g., Wright v. National Archives
& Records Serv., 609 F.2d 702, 716 (4th Cir. 1979).

Collin has shown that he engaged in numerous protected activities,
including his marriage, his research and advocacy, his conversations
with the press, and ultimately the filing of his EEOC complaint.
Taken in a light most favorable to Collin, the actions taken by the
Department and its members could be construed as adverse. However,
in each instance of allegedly retaliatory action, Collin has failed to
establish the crucial causal connection between that action and his
protected activities. None of the evidence of record even suggests that
any of the specific actions on the part of the Department were moti-
vated by Collin's identified protected activities.

In attempting to assign error to the magistrate judge's order by
asserting that such a connection exists, Collin either badly mischarac-
terizes the evidence of record, or relies on the stray comments of non-
decision makers. While derogatory remarks may be direct evidence of
discrimination, see Wilhelm v. Blue Bell, Inc. , 773 F.2d 1429, 1433-
34 (4th Cir. 1985), "Title VII was not designed to create a federal

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remedy for all offensive language and conduct in the workplace."
Hopkins v. Baltimore Gas & Elec., 77 F.3d 745, 754 (4th Cir.), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3240 (U.S. Oct. 7, 1996) (No. 95-
1961). The allegedly discriminatory remarks, therefore, cannot be
stray or isolated statements. According to the Seventh Circuit,
"[u]nless the remarks upon which plaintiff relies were related to the
employment decision in question, they cannot be evidence of [dis-
crimination]." See McCarthy v. Kemper Life Ins. Co., 924 F.2d 683,
686-87 (7th Cir. 1991). The comments identified by Collin were not
so related, and are not, therefore, evidence of discrimination.

Because Collin based his motion for partial summary judgment
solely on it, his claim regarding the letter to a prospective employer
warrants some further analysis.* Negative references to potential
employers may constitute sufficient adverse action to state a retalia-
tion claim. See Robinson v. Shell Oil Co., 519 U.S. 337, ___, 65
U.S.L.W. 4103, 4104-05 (U.S. Feb. 18, 1997) (No. 95-1376). Here,
the magistrate judge concluded that the letter was not sufficient to
support a claim of retaliation because Collin did not show that he did
not get the position at the University of Oregon because of the com-
ments therein. However, because the dissemination of adverse infor-
mation with an impermissible motive is itself the violation of Title
VII, Collin's ultimate success or failure in obtaining the position is
beside the point. Id.

The Defendants focus on the fact that the letter pre-dated Collin's
EEOC complaint. Because of this chronology, contends the Univer-
sity, the letter could not have been retaliatory. This assertion does not
account for the possibility that the letter was in retaliation for other
protected activities, such as the comments to the press referenced in
the letter, which preceded the drafting of the letter. However, as the
magistrate judge correctly noted, the letter was not sufficiently
_________________________________________________________________
*In light of our conclusion regarding the merits of this claim, we need
not revisit the magistrate judge's determination that Collin's motion for
partial summary judgment was untimely. In addition, we note that such
a review would result in speculation on the part of this court, as the mag-
istrate judge concluded that the motion was not filed in accordance with
his pre-trial order. The terms of that order are not preserved in the record
on appeal.

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adverse to Collin to serve as the basis for a Title VII claim. Although
it described Collin's recent activities as "bizarre" and "inconsistent,"
the letter was apparently motivated by a request for information from
the potential employer and primarily served as a cover letter for sev-
eral newspaper articles reporting Collin's own comments. Moreover,
the admissibility of this documentary evidence is dubious at best.
Although Collin claims on appeal that the letter was on departmental
stationery, typed by a secretary, and signed by the department chair,
none of those indicia of reliability are apparent from the document
contained in the record on appeal. See Fed. R. Evid. 901(a). The rul-
ing on the summary judgment motion must be made on such evidence
as was admissible. Fed. R. Civ. P. 56(e). Consequently, the letter does
not support a claim for retaliatory discrimination.

Collin's remaining two claims need not detain us for long. Collin
first suggests that the magistrate judge erred by failing to recuse him-
self from consideration of this case based on his employment with the
University of Virginia School of Law. This claim is completely with-
out merit. Not only did Collin wait until after the magistrate judge
entered an order adverse to his cause of action to raise this issue, but
Collin presented his concern regarding the magistrate judge in a pro
se response to the Defendants' motion for costs. The response to a
post-judgment motion is not the appropriate time or vehicle for such
a complaint. See 28 U.S.C. §§ 144, 455 (1994). Moreover, Collin con-
sented to the jurisdiction of the magistrate judge and agreed that the
magistrate judge should be empowered to enter a dispositive order in
his case. See 28 U.S.C. § 636(c) (1994). An appellant may not com-
plain on appeal of errors he has himself induced or invited. See Brown
v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir.
1996), cert. denied, 65 U.S.L.W. 3689 and 65 U.S.L.W. 3693 (U.S.
Apr. 14, 1997) (No. 96-1365); Cranston Print Works Co. v. Public
Serv. Co., 291 F.2d 638, 649 (4th Cir. 1961). Consequently, we
decline to consider Collin's eleventh hour assertion that the magis-
trate judge should have been recused from the case.

Finally, Collin makes an ill-formed complaint about the magistrate
judge's determinations in limiting the scope of discovery. In doing so,
he cites no document in the record before us and fails to identify error
in a single ruling on the part of the magistrate judge with respect to
discovery. Neither does he make any discovery ruling a part of the

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record on appeal. Furthermore, Collin does not proffer what he
expected to discover but for the alleged errors of the magistrate judge.
Consequently, Collin's bald allegation of error in discovery does not
give this court cause to disturb the magistrate judge's ruling.

Finding that the magistrate judge did not err in granting summary
judgment to the Defendants on Collin's claims of discrimination, and
finding no merit to any of Collin's assignments of error, we affirm.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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