Rudolph ALEXANDER, Plaintiff-Appellant, v. OHIO STATE UNIVERSITY COLLEGE OF SOCIAL WORK, et al., Defendants-Appellees.
No. 10-3358.
United States Court of Appeals, Sixth Circuit.
June 28, 2011.
481 F. App‘x 481
Before: BOGGS and KETHLEDGE, Circuit Judges; and COLLIER, District Judge.*
* The Honorable Judge Curtis L. Collier, Chief United States District Judge for the Eastern District of Tennessee, sitting by designation.
The police officers’ first-hand observations of contraband circumstantially linked to Defendant‘s residence provide sufficient basis for a magistrate judge to conclude that there was “a fair probability that contraband or evidence of a crime will be found in [Defendant‘s residence].” Jackson, 470 F.3d at 306. The district judge thus did not err in denying Defendant‘s motion to suppress evidence seized pursuant to the July 6, 2007 search warrant.
Defendant additionally contends that the district court erred in refusing to suppress statements he made on July 6, 2007, after officers searched his house and arrested him. Defendant argues that his statements should be suppressed because “confessions made during or shortly after [an] illegal search are tainted ... and involuntary and should be suppressed.” (Br. of Appellant at 17.) To be clear, Defendant admits that officers advised him of his Miranda rights prior to his confession. Defendant does not argue that his Fifth Amendment rights were violated; Defendant contends only that his Fourth Amendment rights were violated.
This Court has explained that under Fourth Amendment jurisprudence, “[t]he exclusionary rule generally bars the admissibility at trial of tangible evidence, as well as verbal statements, acquired through unconstitutional means.” United States v. Akridge, 346 F.3d 618, 623 (6th Cir.2003). This rule extends to “not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or fruit of a poisonous tree.” Id.
As discussed above, in this case, the July 6, 2007 search of Defendant‘s residence was based on a warrant supported by probable cause. The search did not violate Defendant‘s Fourth Amendment rights. Therefore, because Defendant‘s July 6, 2007 confession was not tainted by a Fourth Amendment violation, Defendant‘s confession was admissible.
The district court did not err in denying Defendant‘s motion to suppress his July 6, 2007 confession.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s judgment.
Plaintiff Dr. Rudolph Alexander sued The Ohio State University (“OSU“); the OSU College of Social Work (“the College“); OSU‘s Associate Vice President for Human Resources; and the College‘s dean (collectively “Defendants“) for race discrimination and retaliation, in violation of
We first hold that the district court did not abuse its discretion in denying Alexander‘s discovery motion. Second, we affirm the grant of summary judgment to Defendants on Alexander‘s discrimination and retaliation claims because, with respect to each claim, Alexander has either failed to make out a prima facie case or failed to show that Defendants’ proffered reasons for their actions were pretextual. Finally, we affirm the grant of summary judgment for Defendants on Alexander‘s due process claim, because he was not denied meaningful access to the courts.
I
Alexander is an African-American tenured professor of Social Work. He joined the College as an assistant professor in 1989 and was awarded tenure in 1995. He was appointed Director of the College‘s Bachelor of Science and Social Work (“BSSW“) Program in 2000. Shortly after the College hired a new dean in 2005, Alexander raised concerns about the dean‘s suggestion that students sign a pledge to support the National Association of Social Workers’ Code of Ethics, which includes a statement that social workers should not discriminate on the basis of sexual orientation. Alexander told the dean in July 2005 that requiring religious students to “accept[] homosexuality” might be a civil-rights violation. Alexander then attempted to investigate possible pay inequities in the College, suspecting he might be a victim of sex discrimination. In late August 2005, he requested records of faculty salaries, a request that, according to Alexander, “upset” the dean.
Alexander alleges that the dean began engaging in race discrimination and retaliation against him in March 2006, when he was asked to step down as BSSW Director. Then, as a result of his May 2006 annual evaluation, he received the smallest raise among the College‘s professors. Alexander wrote the dean an email on July 3, 2006, contending that, in conducting the evaluations, the dean “divided the faculty into those [he] perceived to be supportive of [him] and those [he] believe[d] not to be supportive,” favoring the perceived supporters.
In September 2006, Alexander requested the results of an anonymous survey of College faculty conducted by the Office of Human Resources. He believed the responses might reveal evidence of discrimination and intimidation by the dean. OSU‘s Associate Vice President for Human Resources informed him that the original surveys had been destroyed. Alexander was later given the aggregated results, and he eventually received, during the course of this litigation, a spreadsheet
On September 4 and 14, 2006, Alexander complained to the OSU Provost‘s Office that the dean was engaging in racial discrimination and was biased toward homosexuals. OSU‘s Human Resources department received the complaint and issued a finding on December 19, 2006, that no discrimination occurred. On December 1, 2006, Alexander filed a charge of discrimination with the Ohio Civil Rights Commission (“OCRC“) and the Equal Employment Opportunity Commission (“EEOC“), alleging that his raise in 2006 discriminated against him based on sex and race and in retaliation for requesting public records. On December 2, 2006, Alexander sent an email to the Associate Vice President for Human Resources and OSU‘s legal counsel calling the dean a liar and saying, “Every time I see [him], I want to punch him in the face and this is putting it mildly.”
Alexander alleges that further discrimination and retaliation occurred when, in 2007, the College issued special one-time merit-based salary adjustments. Alexander‘s raise—one of the smallest in the College—was based on a merit rating determined by a committee comprised of the dean and three professors. Alexander contends that his merit rating was discriminatory because he was not given the highest possible score for scholarship by any committee member. He also alleges that two committee members, who were also full professors, rated him poorly so as to increase their own salaries because all full professors were allocated raises from a fixed pool. On April 3, 2007, Alexander filed another charge with the OCRC and the EEOC, claiming that the 2007 salary adjustment discriminated against him on the basis of race and was retaliatory.
Alexander also claims that he was given no annual raise in 2007 because of discrimination and retaliation. Alexander failed to submit a dossier, which—according to the University‘s Policies and Procedures Handbook—was required to receive a raise. He contends, however, that he did not wish to have the dean evaluate him and that his request for an alternative evaluator should have been granted, even though it was made after the dossier-submission deadline.
In 2007, Alexander sent emails and a memorandum to the dean and several OSU administrators calling the dean a liar and accusing him of racism. Alexander showed his students a slide displaying the College faculty‘s names, races, and salaries, claiming that his salary was an example of racism. In class, he referred to the dean as “gay” and a “leprechaun.” He also told at least two OSU faculty that the dean had AIDS and intimidated faculty by “getting in people‘s faces.”
The dean filed a complaint against Alexander with OSU‘s Human Resources office on March 5, 2008, alleging that Alexander had harassed him based on his sexual orientation. The office issued a report on January 30, 2009, finding that Alexander had engaged in unprofessional conduct and threatening him with disciplinary action if such conduct continued.
Alexander filed this suit against Defendants for race discrimination and retaliation on October 26, 2007, subsequently amending his complaint to include allegations that OSU destroyed public records in violation of the Due Process Clause and
II
We review de novo a district court‘s order granting summary judgment. Sullivan v. Oregon Ford, Inc., 559 F.3d 594, 594 (6th Cir.2009). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file demonstrate “that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
A. Alexander‘s Motion to Compel Discovery
Alexander claims that the district court erred in failing to rule on his motion to compel the “mirror imaging” of the dean‘s hard drives. By declaring the motion “moot,” the court effectively denied it. We review a district court‘s ruling on a discovery matter for abuse of discretion, Audi AG v. D‘Amato, 469 F.3d 534, 541 (6th Cir.2006), reversing only if the court committed “a clear error of judgment, such as applying the incorrect legal standard, misapplying the correct legal standard, or relying upon clearly erroneous findings of fact.” Jones v. Ill. Cent. R.R. Co., 617 F.3d 843, 850 (6th Cir.2010).
Here, the district court made no clear error of judgment. A party may move for an order compelling discovery if the opposing party fails to make a disclosure required by
B. Alexander‘s Race Discrimination Claims
Claims of race discrimination are evaluated under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To proceed on his race-discrimination claim, Alexander must establish a prima facie case of discrimination by
Alexander claims that he was discriminated against because of his race when he was: (1) replaced as BSSW Director; (2) given a low annual raise in 2006; (3) given a low 2007 special salary adjustment; and (4) given no annual raise in 2007. With respect to each of these claims, Alexander has failed to make out a prima facie case or has offered insufficient evidence to allow a reasonable fact-finder to conclude that the legitimate non-discriminatory reasons proffered by Defendants for these actions were pretexts for race discrimination.
1. Replacement as BSSW Director
Alexander was replaced as BSSW Director by an African-American female professor. He cannot establish a prima facie case of discrimination because he was not “replaced by someone outside the protected class.” Wright, 455 F.3d at 707. Alexander argues that the dean replaced him with an African American in order to foil his lawsuit. But he presents no evidence to support this assertion, and we see no reason to depart from the McDonnell Douglas analysis.
2. The 2006 Annual Raise
Alexander‘s 2006 raise was based on his 2005-06 annual evaluation, conducted by the dean. For College administrators, of which Alexander was one of three, the dean assigned weights of 50% for administrative work and a combined 50% for scholarship, teaching, and service. Non-administrative faculty were evaluated only on the latter categories. Faculty received ratings ranging from “no merit” to “extra merit” in each category. Alexander was rated “merit” for scholarship, teaching, and service and “partial merit” for administration. The percentage raise that resulted was the smallest in the College.
Alexander has failed to make out a prima facie case with respect to the 2006 raise. He has not demonstrated that he was treated differently from similarly-situated faculty. The district court found that Alexander was similarly situated only to the other administrative faculty, and concluded that he failed to present evidence that he was evaluated differently than the other two professors in the College who served as administrators. Alexander‘s small raise resulted primarily from his poor rating for administration, and Defendants offered various reasons—which we discuss below—that the dean was unhappy with Alexander‘s performance as BSSW Director.
Non-administrative faculty may be considered similarly situated to Alexander for the purposes of assessing his ratings for scholarship, teaching, and service, but he
3. The 2007 Special Salary Adjustment
Alexander next alleges that he suffered discrimination when he received only a small special salary adjustment in 2007. Here, too, he fails to make out a prima facie case by showing that he was treated differently from similarly situated faculty. He has presented no evidence that the panel applied the evaluation criteria differently to him than to the other full professors with whom his scores were compared to determine his raise. Rather, he disagrees with the decision to award lower-ranking faculty higher percentage raises than senior faculty because the former‘s salaries lagged further behind those at other institutions. Alexander also contends that he deserved the highest possible rating for scholarship, which no panel member gave him. But he has not demonstrated that other full professors received higher ratings for equally worthy scholarship. Finally, Alexander alleges that two panel members rated him poorly in order to allocate themselves a greater share of the pool reserved for full professors. This, however, cuts against his claim that the size of his raise was the product of racial discrimination.
4. The 2007 Annual Raise
Alexander submitted no dossier for the 2006-07 academic year. As a result, he received no raise. This was in accordance with the policy stated in the University‘s Handbook. Alexander points out that his request for a late review by someone other than the dean was denied, contending that, in this respect, he was treated differently from another professor whose request for a different evaluator was granted. But he has not demonstrated that the other professor was similarly situated to him, because he presented no evidence that she too failed to submit a dossier on time. Thus, Alexander cannot establish a prima facie case of discrimination with respect to the 2007 raise.
C. Alexander‘s Retaliation Claims
1. Removal as BSSW Director
Alexander alleges that he was removed as BSSW Director in retaliation for requesting salary information that might reveal sex discrimination. We assume without deciding that this request constituted protected activity. See Niswander, 529 F.3d at 719-20, 725 (stating that Title VII‘s opposition clause protects an employee‘s “reasonable” opposition to unlawful discrimination).
Defendants give various reasons for Alexander‘s removal from the position, citing his lack of progress in developing an undergraduate honors program, a social justice minor, and new courses, tasks that Alexander acknowledges were priorities for the dean. Alexander argues that these reasons were pretextual and challenges the Dean‘s judgment that he was an ineffective administrator. He contends that he missed no required deadlines and was given no written warning of performance problems. He also argues that the dean gave “shifting reasons” for Alexander‘s dismissal—further evidence that those reasons were pretextual. See Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir.2002) (“An employer‘s changing rationale for making an adverse employment decision can be evidence of pretext.“).
Alexander has failed to raise an issue of material fact as to whether the proffered reasons for his removal were a pretext for retaliation. He has not shown that they “had no basis in fact,” “did not actually motivate” the dean‘s decision, or were “not sufficient to motivate” that decision. Manzer, 29 F.3d at 1084. Rather, his own deposition testimony indicates that he had made little progress on the dean‘s prioritized tasks at the time of his removal. Although Alexander was given no written warning, the University Handbook does not indicate that prior written warning is required before removing a professor from an administrative position. Alexander‘s “shifting reasons” argument also fails. The fact that a defendant offers “shifting justifications” for an adverse employment action may sometimes be evidence of pretext. Cicero, 280 F.3d at 592. “When the justification for an adverse employment action changes during litigation, that inconsistency raises an issue whether the proffered reason truly motivated the defendants’ decision.” Ibid. But an inference of pretext is not warranted here. At the time of Alexander‘s removal, the dean cited his failure to make progress on the prioritized tasks as the reason he was being replaced. In his deposition, the dean listed a litany of additional reasons for his dissatisfaction with Alexander‘s performance as BSSW Director. Even so, the dean consistently emphasized Alexander‘s failure to make progress on the tasks. In
2. The 2006 and 2007 Evaluations
Alexander contends that he received a poor annual evaluation in 2006 in retaliation for opposing the dean‘s suggestion that students sign a pledge not to discriminate on the basis of sexual orientation and for requesting information regarding faculty salaries. He asserts that he was given only a small 2007 salary adjustment in retaliation for filing an EEOC charge in December 2006.
With respect to the 2006 evaluation, Alexander has failed to establish a prima facie case of retaliation because he has not “proffer[ed] evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action.” Avery Dennison Corp., 104 F.3d at 861. Retaliation may be inferred from “temporal proximity” if “an adverse employment action occurs very close in time after an employer learns of a protected activity.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.2008). “But where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.” Ibid. Here, Alexander‘s alleged protected activity occurred in July and August of 2005. His 2005-06 annual evaluation did not occur until May 2006. This court has held that an inference of retaliation may be established based on temporal proximity of two or three months. See Sanford v. Main St. Baptist Church Manor, Inc., 327 Fed.Appx. 587, 600-01 (6th Cir.2009) (two months); Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 556 (2004) (three months). The nine-month gap here is too long to permit the inference, absent some other evidence. That additional evidence of retaliatory conduct could include more favorable treatment of similarly-situated professors who did not engage in protected activity. See Hill v. Air Tran Airways, 416 Fed.Appx. 494, 497-98 (6th Cir.2011). As discussed above, however, Alexander has not demonstrated that he was treated differently from other faculty during the 2006 evaluation.
With respect to the 2007 evaluation, Alexander has failed to raise an issue of fact as to whether the reasons Defendants supplied for Alexander‘s low raise were pretextual. See Abbott, 348 F.3d at 542. As previously discussed, he has not demonstrated that he was treated differently from other full professors, nor has he established that he deserved a better evaluation.
3. Dean Meezan‘s Internal Complaint
Alexander contends that Dean Meezan filed an internal complaint against him in retaliation for filing charges with the EEOC. The district court held that Alexander failed to establish a prima facie case of retaliation with respect to Dean Meezan‘s complaint, because the complaint did not constitute an adverse employment action.
The scope of Title VII‘s retaliation provision is broader than that of the discrimination provision and protects employees from any actions that would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quotation marks and citations omitted). A plaintiff must show that the action was “materially adverse” from the standpoint of a “reasonable employee.” Id. at 68-69, 126 S.Ct. 2405. The Supreme Court has limited “adverse employment actions” to something more
We assume without deciding that the lodging of a complaint to OSU‘s Human Resources Office can constitute a “materially adverse” employment action. We nonetheless affirm the district court‘s grant of summary judgment to defendants on this claim because Alexander has presented no evidence that the dean‘s proffered motive for filing the complaint was a pretext for retaliation. Based on facts that Alexander admitted in his deposition, the dean had a legitimate, non-retaliatory reason for filing a complaint alleging that Alexander was harassing him based on his sexual orientation and HIV-positive status. Alexander told a classroom of students that the dean was racist, gay, and a “leprechaun.” Alexander also told a provost and a fellow professor that the dean had AIDS and that people feared he “might accidentally head butt them or scratch their faces.” He sent emails to university administrators and faculty calling the dean a racist and a liar who favored gay and white faculty members. These undisputed facts were sufficient to motivate the dean‘s actions—the dean had the right to seek assistance from OSU in preserving his reputation and keeping his health condition private.
D. Alexander‘s Due Process Claim
Finally, we address Alexander‘s allegation that his right to due process of law was violated by Defendants’ alleged failure to provide him with the responses to the faculty survey. To prevail on a due process claim under
Defendants did not deny Alexander meaningful access to the courts. He was not prevented from filing this lawsuit. He was provided with the survey results he requested while this action was before the district court. Alexander contends that the responses to the survey were not genuine, but his only evidence of such fraud is that he was initially informed that there were 31 respondents, when the data included 33, and that the data were reformatted into a spreadsheet. He admits that the results supplied no evidence of use in this suit. Alexander has presented no evidence that Defendants’ failure to swiftly provide him with the survey results prevented him from obtaining an effective remedy through this litigation. See id. at 1264. Defendants are therefore entitled to summary judgment on Alexander‘s due process claim.
III
We AFFIRM the district court‘s grant of summary judgment for Defendants.
Lauren Justine PALMER, Plaintiff-Appellant, v. Rebecca CACIOPPO, et al., Defendants-Appellees. No. 09-3924. United States Court of Appeals, Sixth Circuit. June 28, 2011.