# Appendix — Ross v. University of South Carolina

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0995%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1038

## Text

la

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

— |

lla

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.

l3a

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

15a

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

17a

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

18a

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” ]

19a

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

20a

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0995%3A2. Public record. Not legal advice.