Appendix — Ross v. University of South Carolina

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IN THE UNITED STATES DISTRICT COURT FOR

THE DISTICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Allison Alphonso Ross,

Plaintiff,

Vv.

University of South Carolina, and Gene L. Luna,

Defendants

Civil Action No. 3:99-0984-17BD

May 16, 2000

Report and Recommendations

Marchant, United States Magistrate Judge

This action was filed by the Plaintiff pursuant to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e),

et. Seq., 42 U.S.C. § 1983, and 42 U.S.C. § 1981.

Specifically, Plaintiff asserts in his Complaint claims for

discriminatory failure to promote under Title VII,

discriminatory termination under Title VII, deprivation

of equal rights under 42 U.S.C. § 1981, and violation of

his First Amendment rights under 42 U.S.C. § 1983.

Plaintiff also asserts a pendant state law claim for

breach of contract.

Both Defendants filed a motion for summary

judgment as to all claims on December 15, 1999.

Plaintiff filed a memorandum in opposition to

Defendants’ motion on December 22, 1999, in which he

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dropped his equal rights claim under § 1981 and his

discriminatory failure to promote claim under Title VII.

Plaintiff opposes summary judgment as to his

remaining claims. The Defendants filed a reply

memorandum on December 30, 1999. Defendants’

motion is now before the Court for disposition. !

Background?

Plaintiff, an African-American, worked for the

Defendant University of South Carolina (“USC”) from

July 1982 until September 3, 1998. See Complaint, p. 2.

Plaintiff began his employment with the Defendant as

an area manager for Residential Life Services, and by

the time of his discharge had risen to the position of

Assistant Director of Housing Maintenance (“ ADHM”).

See Complaint, p. 3. The ADHM position is directly

below the Associate Director of housing Facilities

(“ ADHF”). See Defendants’ Exhibit 12.

In the fall of 1997, USC began the process of selecting

a candidate for the ADHF position, which was vacant

at that time. The Defendant Gene Luna, Director of

| This case was automatically referred to the undersigned United

States Magistrate Judge for all pretrial proceedings pursuant to the

provisions of 28 U.S.C. § 636 (b)(1)(A) and (B) and Local Rule 73-

.02(B)(2)(g), D.S.C. The Defendants have filed a motion for

summary judgment. As this is a dispositive motion, this Report

and Recommendation is entered for review by the Court.

>The facts and evidence are considered and discussed hereinabove

in the light most favorable to the Plaintiff, the party opposing

summary judgment. Pittman v. Nelms, 87 F.3d 166, 188 (4% Cir.

1996).

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Housing for USC (“Luna”), formed a screening

committee to narrow the applicant field and to select

the finalist for the ADHF position. See Defendants’

Exhibit 13. Plaintiff applied for the position, but was

not selected by the Committee as one of the eight

tinalists. > Luna Deposition, p. 26; Defendants Exhibit

11. Tom Battenhouse (white male) was eventually

selected for the position. Luna Deposition, pp. 11-12;

Luna Affidavit. § 13.4 Plaintiff thereafter filed an

internal grievance on March 16, 1998, alleging, inter

alia, race discrimination in his non-selection. See

Plaintiff's Deposition, Exhibit 26. Following an

infavorable grievance decision on May 7, 1998.

*taintiff appealed the decision and pursued other

stievance avenues, all of which were unsuccessful. See

Jefendant’s Exhibits 4, 8, 22-24. Plaintiff went on to file

lhirty-eight applicants, including the Plaintiff and one other

internal candidate, were considered by the Committee. Luna

eposition, p. 19

'he position was initially offered to an African-American male;

owever, that candidate rejected the offer in favor of another job

ffer he had received. Luna Deposition, pp. 52-53; Luna Affidavit,

12; Plaintiff Deposition, Exhibit 7.

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complaints with the Office of Federal Contract

Compliance Programs, the Equal Employment

Opportunity Commission (“EEOC”), and the South

Carolina Human Affairs Commission (“SCHAC”). See

Defendants Exhibits 1 and 2.

Plaintiff alleges that after he fiied his complaints

alleging discrimination, Battenhouse (at the direction of

Luna) began to scrutinize Plaintiff's work and prevent

Plaintiff from managing his job area in retaliation for

Plaintiff having filed his complaint of discrimination.

As evidence of this retaliation, Plaintiff complains the

Battenhouse instructed him to remove a miniature

putting green which Plaintiff had set up in his office,

although the presence and use of such “stress release”

devices had never been objected to before, and hat

Battenhouse also required him to leave his office door

open, although no other employees we subjected to this

requirement. Plaintiff's Deposition, p. 64; See also

Battenhouse Affidavit, { 9; Defendants Exhibit 5. It is

undisputed that Plaintiff refused to remove the putting

green, and that he also continued to both close, and

sometimes lock, his office door. Defendants Exhibits 6

9, 22 (pp. 30-31). Plaintiff was eventually terminated by

USC on September 3, 1998, on grounds of

insubordination. Defendants’ Exhibit 7. Plaintiff

grieved his termination, which was upheld.

Defendants’ Exhibits 8, 9 and 24.

Discussion

Summary judgment “shall be rendered forthwith if

the pleading, depositions, answers to interrogatories,

and admission on file, together with the affidavits, if

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any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgement as a matter of law.” Rule 56 (c), Fed. R. Civ.

P. The moving party has the burden of proving that

judgment on the pleadings is appropriate. Once the

moving party makes this showing, however; the

Opposing party must respond to the motion with

“Specific facts showing there is a genuine issue for trial”

Rule 56 (3), Fed. R. Civ. P.

I.

First Amendment Claim

In his Fifth Cause of Action, Plaintiff asserts a First

Amendment Claim under 42 U.S.C. § 1983. This claim

is asserted only against the Defendant Luna in his

individual capacity. See Plaintiff's Memorandum in

Opposition to Summary Judgment, p.1. Asa state

employee, Luna is subject to suit for damages in his

individual capacity under § 1983. Hafer v. Melo, 112 S.

Ct. 358, 365 (1991); Goodmon v. Rockefeller, 947 F.2d

1186 (4% Cir. 1991); Inmates v. Owens, 561 F.2d 560 (4

Cir. 1977); Gomez v. Toledo, 446 US. 635, 640 (1980);

Parsons v. Bourff, 739 F.Supp.1266, 1267 (S.D. Ind.

1989); DePugh v. Penning, 888 F. Supp. 959, 965 (N.D.

lowa 1995).

Plaintiff alleges in this cause of action that his right

to free speech guaranteed by the First Amendment was

violated when Luna took affirmative efforts to “chill”

his speech and fired him in retaliation for engaging in

his right of free speech. See Rankin v. McPherson, 483

U.S. 378, 383 (1987), citing Perry v. Sindermann, 408

U.S. 593, 597 (1972) [A government official “may not

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discharge an employee on a basis that infringes that

employee's constitutionally protected interest in

freedom of speech.”] However, it is well settled that in

order to be protected, speech must be on a matter of

public concern, and that in the case of public employee,

the employee's interest in expressing himself must also

not be outweighted by any injury the speech services it

performs through its employees.” Waters v. Churchill,

1145S. Ct. 1878, 1884 (1994) [quoting Connick v. Myers,

461 U.S. 138, 142 (1983) (quoting Pickering v. Bd. of

Educ., 391 U. S. 563, 568 (1968)]. Hence, and employee

who speaks out not on matters of public concern, but

only upon matters of personal interest, is not protected

by the First Amendment. Connick, 461 U.S. at 147.

Plaintiff alleges that he exercised his First

Amendment rights and was speaking out on a matter

of public concern when he filed his internal grievance

with the Defendants and his complaint with SCHAC

and the EEOC. Plaintiff relies on Cromer v. Brown, 88

F. 3d 1315 (4% Cir. 1996), to support his claim that his

actions touched on an area of vital public interest, racial

discrimination, and that his subsequent termination

because he exercised this right violated his rights under

the First Amendment. However, the fact in Cromer are

clearly distinguishable form the facts in the case at bar.

In Cromer, the African American Plaintiff was on of a

group of sheriff's deputies who formed a “Black Law

Enforcement Officers Association” to speak out about

alleged racial discrimination in employment practices

under the current sheriff. The sheriff blamed Cromer

for the Association's activities, and allegedly fired him

because of his activities. Under these facts, the Court

held that Cromer, in his activities, spoke as a citizen on

eT |

te wr

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a matter of public concern, and had therefore stated a

First Amendment claim under § 1983. 88F 3.d at 1325-

1326. However, the Court specifically distinguished

Cromer’s situation from one in which a single

employee complains about a personal employment

dispute. Id, at 1326.

Here, the record reflects that the Plaintiff

complained that he was the victim of race

discrimination when he was denied the promotion to

ADHF. A review of Plaintiff's complaint show that his

comments to his supervisors on this matte almost

exclusively, concerned his own personal situation. See

generally Defendant's Exhibits 1,2 and 4; see also,

Complaint. In fact, Plaintiff responded “no when asked

“Do you know any other employees or applicants of

your group who were treated in the same way (checked

above) you allege you were?” on his internal complaint.

See Defendants’ Exhibit 4. Hence, it is apparent from

the weight of the evidence in the file that Plaintiff was

motivated in his actions out of a concern with his own

person circumstances, not with any group as a whole.

This finding is bolstered no only by Plaintiff's own

evidence submitted in this case, but by a review of the

statement of facts contained in the Complaint, which

exclusively deal with Plaintiff’s personal employment

situation. As such, this evidence is insufficient to

maintain Plaintiff's First Amendment claim. Childress

v. City of Richmond, 907 F. Supp. 934, 941 (E.D. Va.

1995), adopted and aff'd, 134 f.3d 1205, 1207 (4% Cir.

1988) (en banc), cert. denied, 118 S. Ct. 2322 (1998) [to

prevail on a First Amendment claim, Plaintiff must

Show that the speech which he alleges led to the

retaliatory actions on the part of the Defendant was “on

Fe a ee

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matters of public concern, rather that as an employee

on matters peculiar to his employment” ]; Huang v. Bd.

Ot Governors of Univ. of North Carolina, 902 F. 2d

1134, 1140 (4 Cir 1990) “ [[A] public employee's

expression of grievances concerning his own

employment is not a matter of public concern.” ].

A complaint of employment discrimination made by

a public employee is not inherently protected merely

because the subject of the complaint is discrimination,

and the mere fact that Plaintiff complained to his |

supervisors and to outside agencies such as SCHAC

and the EEOC about discrimination allegedly practiced

against him is not sufficient to transform those

complaints form personal grievances into protected

speech. Ayoub v. Texas A&M University, 927 F.2d 834

(5% Cir. 1981); Callaway v. Hafeman, 832 F2d 414 (7%

Cir 1987); David v. City and County of Denver, 101 F.

3d 1344, 1354-1357 (10 Cir. 1997), cert. denied, 118 S.

Ct. 157 (1997); Morgan v. Ford, 6 F.3d 750 (11 Cir.

1993); Williams v. Strickland, No. 92-515, 1993 WL

153915, *3 (D.S.C. Mar. 12 1993).

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Therefore, Plaintiff’s First Amendment claim is without

merit and should be dismissed 5

Il.

(Title VII Retaliation Claim) ©

In his Title VII claim (asserted against the Defendant

USC), Plaintiff asserts that the Defendant terminated

him in retaliation for Plaintiff having opposed the

Detendant’s unlawful conduct. With regard to claims

of retaliation, § 704 (a) of Title VII, 42 U.S.C. § 2000 (e) -

3(a), provides as follows: cc

It shall be an unlawful practice for an

employer to discriminate against any

of his employees or applicants for

employment, for an employment agency

or joint labor-management committee controlling

*Detendants also argue in their memorandum that Plaintiff's First

Amendment retaliatory discharge claim is preclude by the State

Employee Grievance Committee’s determination that he was

terminated for misconduct. See University of Tennessee v. Elliott,

478 U.S. 788, 799 (1986). However, given the facts as put before the

Court and the applicable caselaw dealing with First Amendment

claim on the merits. As the undersigned did not reach Defendant's

grievance committee argument, no opinion is offered as to the

merits of this defense.

*While Plaintiff indicates in his memorandum opposing summary

judgment that he is pursing this claim, he offers little if any

argument on this claim in that document. Therefore, the

undersigned has proceeded to analyze this claim by comparing the

facts presented with the applicable statute and caselaw, and by

drawing whatever inferences can he discerned from these facts in

favor of the Plaintiff.

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apprenticeship or other training

or retraining, including on the job

training programs, to discriminate

against any individual, or for a labor

organization to discriminate against

any member thereof or applicants

for membership, because he has

opposed any practice made an unlawful

employment practice by this subchapter,

or because he has made a charge,

testified, assisted, or participated

’ in any manner in an investigation,

proceeding, or hearing under this

subchapter.

Retaliation cases under Title VII are subject to the

same requirements of proof as are applicable to

disparate treatment claims. Ross v. Communication

Satellite Corp., 759 F.2d 355, 365 (4** Cir. 1985); see also

Williams v. Cerberonics, 871 F2d 452,457 (4 Cir. 1989).

“The employee is initially required to establish a prima

facie case of retaliation by a preponderance of the

evidence. Such a prima facie case consists of three

elements: (1) the employee engaged in protected

activity; (2) the employer took adverse employment

action against the employee; and (3) a causal

connection existed between the protected activity and

the adverse action.” Id. Once a prima facie case has

been presented the Defendant employer has the burden

of producing a legitimate, non-discriminatory reason

for its actions. If the employer can produce a

legitimate, non-discriminatory reason for its actions, the

a a eee

— |

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employee must demonstrate that the Defendant's

protfered reason is pretextural. Id.

1) Prima facie case. With regard to the elements of a

prima facie case, it is undisputed that Plaintiff engaged

in protected activity (complaining that he was being

discriminated against on the basis of his race), and that

he was terminated. However, to survive the

Defendant's summary judgment motion, Plaintiff

“must [also] have evidence from which a reasonable

tactfinder could conclude that a causal connection exist

between the protected activity and the adverse

action{s].” Dowe v. Total Action Against Poverty in

Roanoke Valley, 145 F.3d 653,656 (4'* Cir. 1998) That is,

he must proffer evidence sufficient to create a genuine

issue of fact that his employer “ [took] the adverse

employment action[s] because [he] engaged in

protected activity.” Id, at 655. Defendant argues that

Plaintiff has failed to establish any causal connection

between Plaintiff's having engaged in protected activity

and the adverse actions of which he complains.

As evidence of a causal connection, Plaintiff

primarily points to the relatively close proximity of

time between Plaintiff's internal complaint in March

1998 and his termination in September 1998. Although

obviously not dispositive on this issue, a showing of

only a short period of time between a Plaintiff having

engaged in protected conduct and an adverse

employment action being taken against that Plaintiff is

a factor to be considered by the Court in weighing

retaliation claims. Carter v. Ball, 33F.3d 450, 460 (4%

Cir. 1994) [finding decision to downgrade a position six

weeks after an EEO hearing presented a causal

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connection]. But see Cecilino v. Allstate Ins. Co., 908

F.Supp. 519, 532 (N.D. Ill. 1995) [involving 2 /2 month

lapse] [a simple showing that an adverse action

occurred after a complaint of discrimination “is not

enough to make out a prima facie case of retaliation, let

alone to survive a motion for summary judgment.’].

Here, approximately six months passed between

Plaintiff's initial protected:activity and his discharge,

however, Plaintiff also points to events which he argues

show a build-up of animosity towards him during that

time period 9i.e., the “putting green” and “open door”

disputes). While this evidence is obviously not

conclusive as to whether Plaintiff's termination was in

retatiation for Plaintiff having engaged in protected

activity, the undersigned finds that for purposes of

summary judgment only, an in order to allow for

further consideration and discussion of Plaintiff's

retaliation claim, it is sufficient to satisfy the less

demanding burden of making a prima facie case of

causalitv. Jones v. City of Elizabeth City, North

Carolina, 840 F.Supp. 398, 403 (ED.N.D. 1996), aff'd.,

2F.3d 1149 (4 Cir. 1993); Williams v. Cerberonics, 871 F

.2d 452, 457 (4 Cir. 1989); Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981); Proud v.

Stone, 945 F 2d 796,798 (4 Cir. 1991) [the burden of |

establishing a prima facie case is not onerous].

2)Legitimate, non-discriminatory reason.

Assuming Plaintiff has established a prima facie case,

the inference of discrimination created by the

establishment of a prima facie case may be rebutted by

the Defendant if is sets forth a legitimate,

nondiscriminatory reason for its actions.

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Lovelace v. Sherwin Williams Co., 681 F. 2d 230, 239

(4'* Cir. 1982). 7 Here, the Defendant has presented

evidence to show that Plaintiff was terminated because

of declining performance which was allegedly

precipitated by Plaintiff's insubordination and his

desire to set his own work terms. This evidence is

sufficient to establish a legitimate, non-discriminatory

reason for the disciplinary actions taken against the

Plaintiff. EEOC v. Clay Printing Co., 955 F.2d 936, 941

(4"" Cir. 1992). [ADEA case] [The Defendant's Burden

in establishing legitimate, non-discriminatory reason is

only one of production, not of persuasion. ]

3) Pretext. Where a Defendant employer rebuts the

employee’s inference of discrimination by

demonstrating a legitimate, non-discriminatory reason

tor the employment decision, the Plaintiff /employee

can still prevail by demonstrating by a preponderance

of the evidence that the employer’s proffered reason is

a mere pretext for discriminatory conduct. To make

this demonstration, Plaintiff must show that “but for”

his employers intent to discriminate against him, he

would not have suffered the adverse employment

‘The establishment of a prima facie case does shift to the

Defendant the burden of producing evidence on this issue.

Lovelace v. Sherwin-Williams, Co., supra.

l4a

action. EEOC, 955 F.2d at 941; Conkwright v.

Westinghouse, 933 F .2d 231, 234 (4% Cir. 1991). “Direct

or indirect evidence of discriminatory motive may do,

but ‘the evidence as a whole... must be sufficient for a

reasonable fact-finder to infer that the employer's

decision was motivated by [retaliatory animus].’”

LeBlanc v. Great American Insurance Co., 6F.3d 836,

843 (1st Cir. 1993) (citing Goldman v. First Nat'l Bank,

985 F2d 1113, 1117 (1st Cir 1993) (quoting Connell v.

Bank of Boston, 924 F .2d 1169, 1172, n.3. (1st Cir. 1991),

cert. denied 111 S. Ct. 2828 (1991); Vaughan v.

Metrahealth Companies, 145 F. 3d 197 (4 Cir. 1998)

[Applying the pretext plus standard, which requires a

showing that “both the reason was false, and that

[retaliation] was the real reason” (quoting St. Mary's

Honor Ctr. V. Hicks, 509 U.S. 502, 515 (1993)]; Gillins v.

Berkley Electric Cooperative, Inc., 148 F. 3d 413, 416-417

(4 Cir. 1998) [applying the pretext plus standard].

After careful review and consideration of the

evidence, the undersigned does not find that Plaintiff

has submitted sufficient facts to establish pretext in this

case. The mere fact that Plaintiff complained that he

believed he was being discriminated against does not

immunize him from otherwise being reprimanded,

suspended or discharged for valid reasons. Ross 759

F.2d at 366 [“Title VII serves the laudable goal of

protecting employee access to agencies and courts. It

does not shield employees form normal sanctions for

misconduct.” ]; Bodoy v. North Arundel Hosp., 945 F.

Supp 890 898 (D.Md. 1996). Further, Plaintiff's

termination occurred some six (6) months after he made

his complaints of racial discrimination. Even giving

Plaintiff the benefit of the doubt in allowing this time

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frame to be sufficient to establish a prima facie case, it

does not in and of itself provide evidence of pretext.

Cecelino, 908 F. Supp. at 532; Casey v. Balog, 162 F.3d

795, 803 (4* Cir. 1998) [“ A thirteen month interval

between the charge and the retaliation is too long to

establish causation absent other evidence of

retaliation.”]; Dowe v. Total Action Against Poverty in

Roanoke Valley, 145 F.3d 653, 657 (4* Cir. 1998) [“A

lengthy time lapse between the employer becoming

aware of the protected activity and the alleged adverse

employment action...negates any inference that a

causal connection exists between the two.’]; Conner v.

Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10% Cir.

1997) [four month lag between protected activity and

termination not sufficient to justify an inference of

causation].

While Plaintiff also points to the allegedly bad

treatment he received up to the time of this termination

in an effort to connect the events, the evidence shows

that Plaintiff was clearly insubordinate during this

time. After Battenhouse received the position of

ADHF, he was told by the Plaintiff during their initial

conversation that he [Plaintiff] would not be of much

help to Battenhouse because he was bitter about not

having himself been selected for the position.

Battenhouse attests that thereafter Plaintiff was

continually resistant to this authority, defensive about

even minor request, and noncompliant with directives

regarding assignments and deadlines. Battenhouse

specifically attests that,

On April 1, 1998, I distributed to my

subordinates a memo requesting a meeting

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on April 3 to discuss various projects.

I requested preparation by each

individual. [Plaintiff] came unprepared

but agreed to submit material no

later tan the following Monday.

After a second verbal request on

April 7 [Plaintiff] provided minimal

information in an unacceptable

format on April 8, 1998.

On April 3, 1998, I went to [Plaintiff ‘s]

office and found his door locked.

| knocked on the door and after a

few minutes, [Plaintiff] opened the

. door. I explained to him that I needed written

information as to his involvement.

[Plaintiff ] became argumentative

but stated he would write the memo.

I informed [Plaintiff] that the memo

was due no later than April 6, 1998.

[Ptaintiff] did not comply. On the

afternoon of April 13, 1998, I made

a second request to [Plaintiff] for

the memo. Once again, I found

his office door closed and locked.

He stated he had not written the

memo and was not going to. I asked

him if he was refusing to do what I

had requested. He first said “yes”

and then replied “no” because he

felt he did not need to writ a new

memo when the original memo had

the information requested.

On May 1, 1998, I again met with

[Plaintiff]. Upon entering my office,

[Plaintiff] stated to me “Before we

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start, [| want you to know the rules do

not apply to me.” | asked [Plaintiff] to

explain to me what he meant by that

statement. He responded, ‘The rules

do not apply to ine. Don’t you

understand English?”....

On May 11, 1998, I distributed a

memorandum to [Plaintiff] as a

follow up to our meeting of May 7,

1998. See Attachment A. A copy was

provided to my supervisor, Dr. Luna.

In the memo, | identified that ...(b) I

felt the putting green in his office did

not create a positive, professional

image and that the putting green was

to be removed from his office no later

than May 15, 1998. [Plaintiff] was

also instructed to refrain from practicing

golf during work hours; (c) I had seen

[Plaintiff ] office door closed and

locked when I had previously attempted

to meet with him. Effective immediately,

the door was to be closed only

during meetings requiring a high level

of confidentiality and was to be

locked only when [Plaintiff] left at the

end of the day...

Battenhouse Affidavit.

Plaintiff does not contest that he was bitter about not

having received the promotion to ADHF. The evidence

also shows that Plaintiff was specifically instructed to

remove the putting green from his office and to stop

shutting and locking his door on May 11, 1998.

Defendant's Exhibit 5. By June 12, 1998, Plaintiff had

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still not complied with either of these instructions, and

was in fact affirmatively refusing to do so. Plaintiff

was also not doing work and missing meetings and

assignments, and he was warned that continued

conduct of this type would result in his termination.

Defendant's Exhibit 6. However, Plaintiff continued to

refuse to comply with directives for his superiors, and

was finally terminated on September 3, 1998. §

Defendant's Exhibit 7. See also, Defendant's Exhibit 9,

12, &13. In response to this evidence, Plaintiff simply

argues that he should not have had to remove the

putting green from his office, and that he should have

been allowed to keep his office door closed, because he

believed these directives were “unreasonable”.

Defendant's Exhibit 9 at p. 5. However, it is not for this

Court to determine whether Plaintiff should have been

allowed to keep his putting green in his office, or to

keep his office door open. The Court is not here to

second guess whether the Defendant made the proper

employment decisions. Rather, our role is to determine

whether there is sufficient evidence that the Plaintiff

‘Defendant also points out that Luna’s decision to terminate

Plaintiff was upheld after review by at least two bodies; first the

review within the University, and then the lengthy, formal

evidentiary proceeding before the Employee Grievance

Committee. Defendant argues that Plaintiff has presented no

evidence to show that eight of these proceedings wire unfair or

tainted with retaliatory motive, citing to Wagner v. Wheeler, 13 F.

3d 86, 92 n. 5 (4 Cir. 1993)[“We doubt very much whether

[plaintiff], even had he established that [defendant's

recommendation [to terminate] was in retaliation for protected

expression, should recover against [the defendant] after the

termination decision was reviewed and affirmed by the different

bodies, one of which, the Board, is comprises solely of bi-partisan

citizens” ]

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was retaliated against for having engaged in protected

conduct to warrant allowing this case to go to trial.

Based on the evidence presented, and in particular

Plaintiff's own admissions that he refused to comply

with direct and repeated instructions form his boss, the

undersigned does not find that such evidence has been

submitted. A Title VII Plaintiff cannot defeat a

properly supported motion for summary judgment

with unsupported speculation or allegations of

discrimination. Ross, 759 F2d at 365; Felty v. Granves-

dumphries, Co., 818 F.2d 1126, 1128 (4% Cir. 1987);

seale v. Hardy, 769 F.2d at 214. At summary judgment

he non-moving party has an obligation to present

vidence to save his or her allegations from the status

tf speculation, and must respond with specific facts

howing a genuine issue for trial. Rule 56, Fed. R. Civ.

’.; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (19860;

elty, 818 F.2d at 1129-1130; Gairola, 753 F2d at 1288, n.

. Plaintiff has failed to present evidence sufficient to

reate a genuine issue of fact that he was terminated

ecause he engaged in protected activity. Therefore,

his claim is without merit and should be dismissed.

Valker v. MCI Telecommunication Corp., No. 98-2219,

999 WL 503534 **5-6 (4 Cir. July 16, 1999)[summary

idgment granted where Plaintiff failed to produce

actual evidence to support an inference that her race

/aS a motivating factor in the adverse employment

ction]; Thomas v. Randolph Hills N ursing Center, No.

,

/-2642, 1998 WL 454088 (4 Cir. July 28, 1998) [under

retext plus approach, plaintiff has primary task of

howing some evidence on which a juror could

-asonably base a finding that discrimination motivated

1e challenged employment action]; Bruson v. Andrews

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Office &Supply Equipment Co., Inc., No. 98-2379, 1999

WL 371598, at **2 (4 Cir. June 1999) [under pretext

plus approach, employee can avoid summary

judgement only if he has developed some evidence on

which a juror could reasonably base a finding that

discrimination motivated the challenged employment

action].

Ill.

(Pendent State Law Claim)

If the District Court adopts the recommendations

made herein with regard to Plaintiff's two remaining

federal claims, Plaintiff's pendant state law claim,

which is asserted only against the Defendant University

of South Carolina, will be the only claim remaining in

this lawsuit. When federal claims presented in a case

originally filed in federal court are dismissed, any state

claims should also be dismissed, without prejudice, for

the resolution in state court under the general doctrine

developed in United Mine Workers v. Gibbs, 383 U.S.

715 (1966). See In Re Conklin, 946 F 2d 306, 324 (4 Cir

1991); Nicol v. Imagematrix, Inc. 767 F Supp. 744, 746,

749 (E.D. Va. 1991); Mills v. Leath, 709 F. Supp. 671,

675-676 (D.S.C. 1988); Carnegie-Melton v. Cohill, 484

U.S. 343 (1988); Taylor v. Waters, 81 f.3d 429, 437 (4%

Cir. 1996). Dismissal of this remaining state law cause

of action will not only allow the more appropriate court

to rule on this exclusively state claim, but will not

prejudice the parties, as the parties may seek a fast

track for resolution of this claim at the state level. See

Rule 40 (c), S.C.R.C.P. Further, this Court is also not

required to retain supplemental jurisdiction over this

remaining state law claim on grounds that the state

21a

statute of limitations for bringing this claim may have

now expired. Federal law provides for tolling of state

statutes of limitations for state claims during the period

they were pending in federal court and for thirty (30)

days afterwards. See 28 U.S.C.A. § 1367 (d); Hedges v.

Musco, et al., 204 F.3d 109, 123-124 (34 Cir. 2000); Beck

v. Prupis, 162 f.3d 1090, 1099-1100 (11% Cir. 1998) [“a

dismissal under section 1367 tolls the statute of

limitations on the dismissed claims for 30 days:];

Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998)

(“Section 1367 (d) ensures that the plaintiff whose

supplemental jurisdiction is dismissed has at least

thirty days after dismissal to refile in state court”.

In any event, although not brought up by the

Defendant, it is arguable that, even if this Court were

inclined to retain supplemental jurisdiction over

Plaintiff's state law claim, it would lack the authority to

do so. A state agency is immune from suit in federal

- court by virtue of the Eleventh Amendment. Therefore,

before a state or state agency may be sued in federal

district court, it must expressly consent to jurisdiction.

Pennhurst State School & Hospital v. Halderman, 465

U.S. 89, 99 (1984); Coffin v. South Carolina Dep’t of

Social Services, 562 F. Supp. 579, 583-585 (D.S.S. 1983);

Belcher v. South Carolina Board of Corrections, 460 f.

Supp. 805, 808-809 (D.S.C. 1978); See Batson v. USC, 443

F. Supp. 127, 128 (D.S.C. 1977) [Describing the

University of South Carolina as a state agency].

The State of South Carolina has not consented to suit

in a federal court. See § 15-78-20 (e), South Carolina

Code of Laws, which expressly provides that the State

of South Carolina does not waive Eleventh Amendment

22a

immunity, consents to suit only in a court of the State of

South Carolina, does not consent to suit in federal court

or in a court of another State. See also McCall v.

Batson, 285 S.C. 243, 329 S.E. 2d 741, 743 (1985)

(Opinion abolishing sovereign immunity in tort “does

not abolish the immunity which applies to all

legislative, judicial and executive bodies and to public

officials who are vested with discretionary authority,

for actions taken in their official capacities.”). Cf.

Pennhurst State School & hospital v. Halderman, supra,

465 U.S. at 121 (“[NJeither pendent jurisdiction nor any

other basis of jurisdiction may override the Eleventh

Amendment.”). Therefore, Plaintiff's state law claim

for breach of contract should be dismissed, without

prejudice.

Conclusion

Summary judgment is appropriate where the record

taken as a whole could not lead a rational trier of fact to

find for the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242 (1986). Based on the

foregoing, it is recommended that the Defendants’

motion for summary judgment be granted on Plaintiff's

First Amendment claim under § 1983 and retaliation

claim under Title VII, and that these causes of action

dismissed, with prejudice. Plaintiff has withdrawn his

remaining federal claims.

With regard to Plaintiff's remaining state law breach

of contract claim, it is recommended that this claim be

dismissed, without prejudice, so that Plaintiff may

pursue this claim in state court, if desired.

| s/ Bristow Marchant

United States Magistrate Judge

23a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Allison Alphonso Ross,

Plaintiff,

Vv.

University of South Carolina and Gene Luna,

Defendants

C/A No.: 3:99-984-17BD

Decided on June 1, 2000

ORDER

Anderson, United States District Judge

This matter is before the court for review of the

magistrate judge’s report and recommendation made in

accordance with 28 USC § 636 (b)(1)(B) and Local Rule

73.02.

The magistrate judge makes only a recommendation

to this court. The recommendation has no presumptive

weight, and the responsibility for making a final

determination remains with the district court. Mathew

v. Weber, 423 U.S. 261 (1976). The district court is

charged with making a de novo determination of those

portions of the report and recommendation to which

specific objection is made, and it may accept, reject, or

modify, in whole or in part, the recommendation of the

magistrate judge, or recommit the matter to the

24a

magistrate judge with instructions. 28 U.S. C. § 636 (b)

(1). |

Plaintiff initiated this action against his former

employer, the University of South Carolina and Gene L.

Luna, Director of Housing for U.S.C. Plaintiff is an

African American who worked at U.S.C. form July 1982

until September 3, 1998. He began his employment as

area manager for Residential Life Services and by the

time of his discharge had risen to the position of

Assistant Director of Housing Maintenance (‘ADHM”).

The ADHM position is directly below the position of

Associate Director of Housing Facilities (“ ADHF”). In

1997, the position of ADHF became vacant. A

screening committee was formed , and plaintiff applied

for this position, but was not selected by the committee

as one of the eight finalists. Tom Battenhouse, a white

male, was selected. Following unsuccessful

administrative grievance, plaintiff initiated complaints

with the Equal Employment Opportunity Commission

(“EEOC”) and the South Carolina Human Affairs

Commission (“SCHAC”).

According to the complaint, after plaintiff made

allegations of discrimination, Battenhouse (at the

direction of Luna) began to scrutinize the plaintiff's

work and prevent plaintiff from managing his job, in

retaliation of plaintiff having filed his complaint of

discrimination. Plaintiff contend that Battenhouse

required him to move a miniature putting green form

his office and required him to lease his door open,

although no other employees were required to do this.

The record in this case reveals that it is undisputed that

plaintiff refused to move the putting green, and he also

25a

continued to close, and sometimes lock, his office door.

Plaintiff was terminated by U.S.C. on September 3, 1998

on the grounds of insubordination. After filing internal

grievances with U.S.C., plaintiff turned to this court.

Originally, he asserted claims for discriminatory failure

to promote and discriminatory termination (retaliation)

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, et seq.; deprivation of equal rights under 42

U.S.C. § 1981; and violation of his First Amendment

rights under 42 U.S.C. § 1983. In addition, he asserted a

supplementary state law claim for breach of contract.

Before the magistrate judge, both defendants moved

tor summary judgment. Plaintiff then dropped his

equal rights claim under section 1981 and his

discriminatory failure to promote claim under Title VII.

He opposed summary judgment as to his. remaining

claims. The magistrate judge to whom this matter was

referred has filed a detailed and comprehensive report

and recommendation suggesting that the defendant's

motion for summary judgment be granted on plaintiff's

First Amendment claim under Section 1983 and his

Retaliation claim under Title VII. As to the remaining

state law claim, the magistrate judge suggests that this

court should

dismiss this claim without prejudice so that it may be

litigated, if at all, in state court.

Through his attorney, Ross has filed a five page

objection memorandum which was received by the

clerk on May 26, 2000. The court has carefully

reviewed the objection memorandum in light of the

report and recommendation and the entire record in

26a

this case and finds no basis for disturbing the

magistrate judge’s recommended disposition.

The First Amendment Claim

Plaintiff alleges in this cause of action that his right to

free speech guaranteed by the First Amendment was

violated when Luna took affirmative steps to “chill” his

speech and fired him in retaliation for engaging in his

right of free speech. As the magistrate judge correctly

observes, however, it is well settled that in order to be

protected, the speech at issue must be on a matter of

public concern, and in this case of public employee, the

employee's interest in expressing himself must not be

outweighed by any injury the speech would cause to

“the interest of the state, as an employer, in promoting

the efficiency of the public services it performs through

its employees.” Waters v. Churchill, 114 S. Ct. 1878, 1884

(1994).

In this case, plaintiff alleges that he exercised his First

Amendment rights and was speaking out on a matter

of public concern when he filed his internal grievance

with U.S.C. and his complaints with SCHAC

and EEOC. Plaintiff relies primarily on the Fourth

Circuit decision of Cromer v. Brown, 88 F. 3d 1315 (4%

Cir. 1996) to support his claim that his speech touched

an area of vital public interest, to wit, racial

discrimination at U.S.C. The magistrate judge

distinguished the Cromer decision, however suggesting

that in Cromer, the African American plaintiff was one

of a group of sheriff's deputies who formed a “Black

Law Enforcement Officers Association” to speak out

about alleged racial discrimination employment under

27a

the Sheriff. Here, as the magistrate judge notes,

plaintiff complained that he was the victim of race

discriminated when he was denied promotion to the

position of ADHF. The record clearly indicates,

however, that his comments to his supervisors on this

matter almost exclusively concerned his own personal

situation. As the magistrate judge observes, plaintiff

responded “no” when asked “Do you know any other

employees or applicants of your group who were

treated in the same way (checked above) who alleged

you were? “ on his internal complaint. On this record,

the magistrate judge concludes that the plaintiff's

evidence is insufficient to maintain a First Amendment

claim.

In objecting to this portion of the report and

recommendation, Ross contends that the magistrate

udge placed undue weight on the “ perceived factual

Jifferences between the Cromer v. Brown case and those

of the case at bar”. He suggests that nothing in the

Cromer decision indicates that there must be more than

i single employee to bring a First Amendment

‘laim. In regard to the response given on the form

isking about other employees of the affected group

vho were treated similarly, plaintiff suggests that this

vas in response to a standard Department of Labor

orm and that the magistrate judge has taken it out of

‘ontext.

The court is constrained to overrule all of these

'bjections. This court has carefully reviewed the

-romer decision and agrees with the magistrate judge

hat the facts of the case were quite different from the

nstant case. Because plaintiff has failed to produce

28a

evidence sufficient to create a genuine issue of material

fact as to whether his speech touched on a matter of

public concern, the magistrate judge was correct in

suggesting that this claim be dismissed.

The Title VII Retaliation Claim

The magistrate judge concludes that in regar@ to the

Title Vii claim, the plaintiff has sufficiently set out a

prima facie case, and that the defendant has set forth a

legitimate, non-discriminatory reason for its actions.

The magistrate judge then turned to the third stage of

the analysis and inquired as to whether the plaintiff can

still prevail by demonstrating by a preponderance of

the evidence that U.S.C.’s proffered reason for his

discharge was a mere pretext for discriminatory

conduct.

The magistrate judge has carefully reviewed the

rather voluminous record in this case and has

concluded that the plaintiff has not submitted sufficient

facts to establish pretext in this case. According to the

magistrate judge, the mere fact that plaintiff

complained that he believed he was being

discriminated against does not immunize him form

otherwise being reprimanded, suspended or

discharged for valid reasons. The magistrate judge

correctly notes that the plaintiff was clearly

insubordinate during the relevant period of time and

plaintiff himself admitted during the initial

conversation with Battenhouse that he (plaintiff) would

not be of much help to Battenhouse because he was

biter about not having himself been selected for the

position. Battenhouse testified that thereafter plaintiff

eee

29a

was continually resistant to this authority, defensive

about even minor requests, and non-complaint with

reasonable directives regarding assignment and

deadline. The most prominent example, of course, is

plaintiff's failure to remove the putting green from his

office when being given explicit instructions to do so.

In objecting to this portion of the report and

recommendation, plaintiff contends that the magistrate

judge failed to address “ the discrimination evident in

requiring Mr. Ross to comply with a higher standard

than other employees simply because he complained

about race discrimination.” He su &gests that his work

habits did not exhibit “declining performance” as

found by the magistrate judge, but actually were the

“direct result of [defendants’] discrimination and

racially hostile work environment.” Plaintiff suggests

that the magistrate judge ignored a statement on page

16 of his memorandum that “Luna concedes that prior

to his complaints about racial discrimination, Ross was

not reprimanded for poor performance”. In sum, Ross

contends that the magistrate judge placed undue

importance on issues raised by defendants that are

unsupported by the record.

After reviewing the record in this case, the

applicable law, the report and recommendation of the

magistrate judge, and plaintiff's objection

memorandum, this court concludes that he magistrate

judge’s recommended disposition is correct. The

report and recommendation of that magistrate judge,

and plaintiff's objection memorandum, this court

concludes that the magistrate judge’s recommended

disposition is correct. The report and recommendation

30a

_ is incorporated herein by reference; all objections are

overruled; defendants motion for summary judgement

as to the Section 1983 claim for violation of the First

Amendment and his Title VII claim for retaliation is

granted. The remaining federal claims have be _

withdrawn by the plaintiff. In accordance with the

recommendation of the magistrate judge, the court will

decline to exercise jurisdiction over the remaining state

law claim and will dismiss that claim, without

prejudice, to be litigated in state court, if at all.

For the foregoing reason, all federal claims are

dismissed, with prejudice, the state claim is dismissed

without prejudice; and this action is hereby ended.

IT IS SO ORDERED.

s/Joseph F. Anderson Jr.

United States District Judge

3la

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Allison Alphonso Ross,

Plaintiff-Appellant,

Vv.

University of South Carolina; Gene Luna,

Defendants-Appellees.

No. 00-1793

November 1, 2000

WIDENER, MICHAEL, KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Allison Alphonso Ross, Appellant Pro Se. Jonathan

Pharr Pearson, C. Frederick W. Manning, II, ELLZEY &

BROOKS, L.L.C., Columbia South Carolina, for

Appellees.

Unpublished opinions are no binding precedent in this

circuit. See Local Rule 36 (c ).

PER CURIAM:

Allison Alphonso Ross appeals the district court's

order denying relief on his 42 U.S.C.A. § 1983 (West

Supp. 1999) .

32a

We have reviewed the record and the district court's

opinion accepting the magistrate judge’s

recommendation and fin no reverse error. *

Accordingly, we affirm substantially on the reasoning

of the district court. See Ross v. University of South

Carolina, No. CA-99-984-3-17BD (D.S.C. June 2, 2000).

We dispense with oral argument because the facts and

legal contentions are adequately presented in the

materials before the court and argument would not aid

the decisional process.

AFFIRMED.

*Ross contends that district court misconstrued a

statement by him when it rejected his First Amendment

Claim. Even if this assertion is correct, the remaining

evidence relied upon by the district court adequately

supports its judgment.

33a

PERTINENT STATUTORY AND REGULATORY

PROVISIONS

U.S. Code 42 § 1981

(a) Statement of equal rights states that all persons

within the jurisdiction of the United States shall have

the same right in every State and Territory to make and

enforce contracts, to sue, be parties, give evidence, and

to the full and equal benefit of all laws and proceedings

for the securitv of persons and property as is enjoyed

by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

(b) "Make and enforce contracts" defined as for

purposes of this section, the term "make and enforce

contracts” includes the making, performance,

modifi ation, and termination of contracts, and the

enjoy:nent of all benefits, privileges, terms, and

conditions of the contractual relationship. (c) Protection

against impairment defined as the rights protected by

this section are protected against impairment by

nongovernmental discrimination and impairment

under color of State law.

U.S. Code 42 § 1983

Everv person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

34a

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any

action brought against a judicial officer for an act or

omission taken in such officer's judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable. For the purposes of this section, any

Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the

District of Columbia.

The First Amendment

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably to

assemble, and to petition the government for a redress

of grievances.

The Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

Ww

o)

a

The Fourteenth Amendment Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

Federal Rule of Evidence 401

“Relevant evidence" means evidence having any

tendency to make the existence of any fact that is of

consequence to the determination of the action more

probable or less probable than it would be without the

evidence”.

Federal Rule of Evidence 406

Evidence of the habit of a person or of the routine

practice of an organization, whether corroborated or

not and regardless of the presence of eyewitness, is

relevant to prove that the conduct of the person or

organization on a particular occasion was in conformity

with the habit or routine practice.