UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1277
JAMES D. DAVIS,
Plaintiff - Appellant,
v.
WESTERN CAROLINA UNIVERSITY; UNIVERSITY OF NORTH
CAROLINA,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of North Carolina,
at Bryson City. Martin K. Reidinger, District Judge. (2:14-cv-00006-MR-DLH)
Argued: May 11, 2017 Decided: June 13, 2017
Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Nicole R. Scallon, Christina J. Banfield, WAKE FOREST UNIVERSITY
SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Catherine Faith
Jordan, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellees. ON BRIEF: Robert C. Carpenter, ADAMS, HENDON, CARSON,
CROW AND SAENGER, P.A., Asheville, North Carolina; John J. Korzen, Director,
Appellate Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
James Davis (“Appellant”), a professor of Spanish, was denied tenure from
Western Carolina University (“WCU”). He then sued alleging WCU discriminated
against him in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq., due to his mental illness. After extensive discovery, the district court
granted summary judgment to WCU concluding that WCU denied Appellant tenure for
reasons unrelated to his alleged disability. We determine that WCU denied Appellant
tenure because of his misconduct, not his disability; therefore, we affirm.
I.
The district court provided a thorough recital of the facts below such that we do
not need to repeat them in full here. 1 In short, beginning in 2006, Appellant held a tenure
track position at WCU. In 2010, Appellant applied for tenure for the first time but
withdrew his application when Dean Wendy Ford said she would recommend against his
tenure because of concerns about his scholarship. He applied again in 2011, and, in late
2012, WCU denied his tenure application.
Before WCU’s denial of tenure became final, Appellant filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”) asserting
that he was denied tenure because of his depression and depression-related mental health
impairments. On November 22, 2013, Appellant received a letter from the EEOC
1
We adopt the factual background set forth in the district court’s opinion. See
Davis v. W. Carolina Univ., No. 2:14-CV-00006-MR-DLH, 2016 WL 8692894, at *6
(W.D.N.C. Feb. 19, 2016).
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granting him the right to sue. On May 5, 2014, Appellant filed this action alleging that
WCU denied him tenure because of his mental health related disabilities in violation of
the ADA.
After extensive discovery and upon WCU’s motion, the district court granted
summary judgment to WCU. The court concluded that Appellant failed to present any
evidence demonstrating that his discharge occurred as the result of discrimination.
Rather, it determined that WCU denied Appellant tenure due to his numerous instances of
misconduct.
Appellant timely appealed.
II.
We review the district court’s grant of summary judgment de novo. See RLM
Commc’n v. Tuschen, 831 F.3d 190, 195 (4th Cir. 2016). “Summary judgment is
appropriate only if no material facts are disputed and the moving party is entitled to
judgment as a matter of law.” Dreamstreet Invs., Inc. v. MidCountry Bank, 842 F.3d 825,
829 (4th Cir. 2016).
III.
To establish a discrimination claim pursuant to the ADA, a party must establish
his disability was the “but-for” cause of an adverse employment decision. Gentry v. E.
W. Partners Club Mgmt. Co., 816 F.3d 228, 235 (4th Cir. 2016). If an employer acts
with a mixed motive -- both a discriminatory and non-discriminatory reason -- then the
employer is not liable. See id. In other words, causation requires disability to be more
than a motivating factor: it must be the only motivating factor. See id.
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Here, the undisputed evidence amply demonstrates that WCU’s decision was
motivated primarily by Appellant’s numerous instances of gross misconduct and not his
disability. Appellant’s gross misconduct included, but was not limited to, a poem he
wrote depicting the rape of Dean Ford, a story he wrote about killing a faculty member,
and threats directed against those involved in the tenure process. Because of the alarming
and continuous nature of Appellant’s misconduct, multiple faculty members suffered
from anxiety, sleep deprivation, and were afraid to come to work.
Indeed, as to Appellant’s misconduct, Dean Gibbs Knotts, who recommended
against Appellant’s 2011 tenure application, specifically identified an incident where
campus law enforcement filed a report against Appellant for making derogatory
comments to construction workers who had called the police to have Appellant’s illegally
parked vehicle towed. Additionally, Dean Knotts described the general fear Appellant
engendered amongst the faculty as a further reason he opposed Appellant’s tenure. For
example, one colleague was “scared to come to work” in light of Appellant’s comments
and sought an arrangement to teach on-line to avoid interacting with Appellant. J.A.
146. 2 Another colleague had to see a therapist and considered resigning from WCU
because of Appellant. The University Collegial Review Committee also voted to deny
tenure to Appellant because it “was concerned about [Appellant’s] pattern of disruptive
behavior.” Id. at 134.
2
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.
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Therefore, based on the entire record, we hold that a reasonable jury would not
conclude that discriminatory animus was the but-for cause of WCU’s negative tenure
determination. See Gentry, 816 F.3d at 235.
Moreover, in accord with our sister circuits, we are hesitant to second guess the
“subjective and scholarly judgments” involved in professorial employment matters.
Jiminez v. Mary Washington Coll., 57 F.3d 369, 376 (4th Cir. 1995) (quotation marks
omitted); see also E.E.O.C. v. Amego, Inc., 110 F.3d 135, 145 (1st Cir. 1997) (“In the
context of academic tenure cases, this court has been attentive to the need to balance the
right of a plaintiff to be free from discrimination against the undesirable result of having
the court sit as a ‘super-tenure committee.’” (quoting Villanueva v. Wellesley Coll., 930
F.2d 124, 129 (1st Cir. 1991))). Ultimately, in a circumstance such as this where
substantial evidence supports the lawful denial of tenure, we will not interfere with that
decision.
IV.
For the foregoing reasons and for the reasons ably stated in the district court’s
opinion, we affirm.
AFFIRMED
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