James D. DAVIS, Plaintiff-Appellant, v. WESTERN CAROLINA UNIVERSITY; University of North Carolina, Defendants-Appellees.
No. 16-1277
United States Court of Appeals, Fourth Circuit.
Decided: June 13, 2017
Argued: May 11, 2017
687
III.
Finally, McLean claims the Government‘s closing argument constituted misconduct. Specifically, McLean asserts that the prosecutor portrayed the defense attorney as deceitful, by claiming that he was attempting to distract the jury through the use of “smoke and mirrors.” J.A. 466.
We review a claim of prosecutorial misconduct “to determine whether the conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (internal quotation marks omitted). “The test for reversible prosecutorial misconduct has two components; first, the defendant must show that the prosecutor‘s remarks or conduct were improper and, second, the defendant must show that such remarks or conduct prejudicially affected his substantial rights so as to deprive him of a fair trial.” Id. In addition, because McLean did not object during or after closing argument, we review for plain error. See United States v. Olano, 507 U.S. 725, 732 (1993).
We find that the prosecutor‘s characterization of the defense‘s strategy was not misconduct. The Government instead was commenting on the strength of the merits of the defense by focusing the jury on the officers’ testimony regarding the encounter and the video evidence. Moreover, contrary to McLean‘s suggestion, the prosecutor‘s argument was not a personal attack on defense counsel, but rather a comment on the materiality of the defense‘s evidence. Accordingly, the Government‘s closing argument was not improper. See United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013) (finding no error in prosecutor‘s use of term “smoke and mirrors” to describe defense‘s case); United States v. Davis, 15 F.3d 1393, 1402-03 (7th Cir. 1994) (finding that Government‘s references to defense case as “hogwash,” “trash,” and “garbage” may have been undignified but did not violate defendant‘s due process).
Thus, we affirm McLean‘s conviction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED
Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.
ARGUED: Nicole R. Scallon, Christina J. Banfield, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Catherine Faith Jordan, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Robert C. Carpenter, ADAMS, HENDON, CARSON, CROW AND SAENGER, P.A., Asheville, North Carolina; John J. Korzen, Director, Appellate Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Davis (“Appellant“), a professor of Spanish, was denied tenure from Western Carolina University (“WCU“). He then sued alleging WCU discriminated against him in violation of the Americans with Disabilities Act (“ADA“),
I.
The district court provided a thorough recital of the facts below such that we do not need to repeat them in full here.1 In short, beginning in 2006, Appellant held a tenure track position at WCU. In 2010, Appellant applied for tenure for the first time but withdrew his application when Dean Wendy Ford said she would recommend against his tenure because of con-
Before WCU‘s denial of tenure became final, Appellant filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC“) asserting that he was denied tenure because of his depression and depression-related mental health impairments. On November 22, 2013, Appellant received a letter from the EEOC granting him the right to sue. On May 5, 2014, Appellant filed this action alleging that WCU denied him tenure because of his mental health related disabilities in violation of the ADA.
After extensive discovery and upon WCU‘s motion, the district court granted summary judgment to WCU. The court concluded that Appellant failed to present any evidence demonstrating that his discharge occurred as the result of discrimination. Rather, it determined that WCU denied Appellant tenure due to his numerous instances of misconduct.
Appellant timely appealed.
II.
We review the district court‘s grant of summary judgment de novo. See RLM Commc‘n v. Tuschen, 831 F.3d 190, 195 (4th Cir. 2016). “Summary judgment is appropriate only if no material facts are disputed and the moving party is entitled to judgment as a matter of law.” Dreamstreet Invs., Inc. v. MidCountry Bank, 842 F.3d 825, 829 (4th Cir. 2016).
III.
To establish a discrimination claim pursuant to the ADA, a party must establish his disability was the “but-for” cause of an adverse employment decision. Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 235 (4th Cir. 2016). If an employer acts with a mixed motive—both a discriminatory and non-discriminatory reason—then the employer is not liable. See id. In other words, causation requires disability to be more than a motivating factor: it must be the only motivating factor. See id.
Here, the undisputed evidence amply demonstrates that WCU‘s decision was motivated primarily by Appellant‘s numerous instances of gross misconduct and not his disability. Appellant‘s gross misconduct included, but was not limited to, a poem he wrote depicting the rape of Dean Ford, a story he wrote about killing a faculty member, and threats directed against those involved in the tenure process. Because of the alarming and continuous nature of Appellant‘s misconduct, multiple faculty members suffered from anxiety, sleep deprivation, and were afraid to come to work.
Indeed, as to Appellant‘s misconduct, Dean Gibbs Knotts, who recommended against Appellant‘s 2011 tenure application, specifically identified an incident where campus law enforcement filed a report against Appellant for making derogatory comments to construction workers who had called the police to have Appellant‘s illegally parked vehicle towed. Additionally, Dean Knotts described the general fear Appellant engendered amongst the faculty as a further reason he opposed Appellant‘s tenure. For example, one colleague was “scared to come to work” in light of Appellant‘s comments and sought an arrangement to teach on-line to avoid interacting with Appellant. J.A. 146.2 Another colleague had to see a therapist and considered resigning from WCU because of Appellant. The University Collegial Review Committee also voted to deny tenure to Appellant because it “was concerned
Therefore, based on the entire record, we hold that a reasonable jury would not conclude that discriminatory animus was the but-for cause of WCU‘s negative tenure determination. See Gentry, 816 F.3d at 235.
Moreover, in accord with our sister circuits, we are hesitant to second guess the “subjective and scholarly judgments” involved in professorial employment matters. Jiminez v. Mary Washington Coll., 57 F.3d 369, 376 (4th Cir. 1995) (quotation marks omitted); see also E.E.O.C. v. Amego, Inc., 110 F.3d 135, 145 (1st Cir. 1997) (“In the context of academic tenure cases, this court has been attentive to the need to balance the right of a plaintiff to be free from discrimination against the undesirable result of having the court sit as a ‘super-tenure committee.‘” (quoting Villanueva v. Wellesley Coll., 930 F.2d 124, 129 (1st Cir. 1991))). Ultimately, in a circumstance such as this where substantial evidence supports the lawful denial of tenure, we will not interfere with that decision.
IV.
For the foregoing reasons and for the reasons ably stated in the district court‘s opinion, we affirm.
AFFIRMED