385 F.3d 683 (6th Cir. 2004), 02-6360, Leadbetter v. Gilley

Docket Nº02-6360.
Citation385 F.3d 683
Party NameRonald C. LEADBETTER, Plaintiff-Appellant, v. J. Wade GILLEY, Defendant-Appellee.
Case DateSeptember 29, 2004
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

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385 F.3d 683 (6th Cir. 2004)

Ronald C. LEADBETTER, Plaintiff-Appellant,

v.

J. Wade GILLEY, Defendant-Appellee.

No. 02-6360.

United States Court of Appeals, Sixth Circuit

September 29, 2004

Argued March 10, 2004.

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David R. Duggan (argued and briefed), Garner & Duggan, Maryville, TN, Plaintiff-Appellant.

Edward G. Phillips (argued and briefed), Penny A. Arning (briefed), Kramer, Rayson, Leake, Rodgers & Morgan, LLP, Knoxville, TN, for Defendant-Appellee.

Before: MARTIN and CLAY, Circuit Judges; MILLS, District Judge.[*]

OPINION

MILLS, District Judge.

The district court awarded summary judgment against Ronald C. Leadbetter on his employment discrimination claims.

He appeals.

We AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

In early September 1999, University of Tennessee (the "University") General Counsel Beauchamp Brogan announced his retirement effective December 31, 1999. The University's then-president, J. Wade Gilley, proceeded to fill the job opening. Prior to any advertisement of or search for a replacement, Gilley asked Brogan whether he could directly promote Deputy General Counsel Catherine Mizell to the position. After Gilley received legal advice to the contrary, he initiated a job search for the position.

Gilley authorized a formal search for general counsel candidates. At Gilley's direction, Brogan prepared a formal announcement for the position of Vice President, General Counsel, and Secretary. The announcement stated that:

The successful [General Counsel] candidate must have the following minimum qualifications: (1) J.D. or L.L.B. from an accredited law school; (2) admission to, or immediate eligibility for, the Tennessee State Bar; (3) a minimum of fifteen years of legal practice experience, at least ten of which must have been as full-time, in-house counsel for a multi-campus, public institution of higher education; (4) experience in transactional matters and civil litigation; (5) strong analytical skills and (6) understanding of and commitment to affirmative action and to achieving the University's affirmative action objectives.

The search was conducted exclusively by University Trustee Roger Dickson. Dickson forwarded the names of candidates he believed to be most qualified for the position. One of the candidates on Dickson's list was associate general counsel Ronald Leadbetter. Other than the fact that Leadbetter was an associate with the general counsel's office who oversaw some litigation at the University of Tennessee's Memphis campus, there is little information in the parties' briefs concerning Leadbetter's credentials.

Deputy General Counsel Mizell was another candidate whose name appeared on Dickson's list. Mizell had been promoted

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over Leadbetter six years prior to Brogan's retirement. She was a former editor-in-chief of the University of Tennessee Law Review and she met all of the job requirements for General Counsel. In her fifteen years at the University, she managed the General Counsel's staff and budget, reviewed other attorneys' work, and handled the University's most complex legal issues--including a $225 million transfer of the University's hospital to a not-for-profit organization. Additionally, Mizell was recommended by General Counsel Brogan, former President Joseph E. Johnson, and the three highest-ranking administrators at the University. Brogan did not recommend Leadbetter for the general counsel position because Brogan felt that Leadbetter lacked the necessary academic background, management skills, and analytical tools.

Gilley interviewed Mizell and Leadbetter for the position of Vice President and General Counsel. Gilley interviewed Mizell twice and Leadbetter once. According to Leadbetter, it was clear to him from the outset of the 15-minute interview that Gilley was not interested in his qualifications for the position since the interview involved little more than "chit-chat" unrelated to Leadbetter's credentials.

On December 14, 1999, Gilley met with Leadbetter. Gilley stated that he had spoken to the administrative staff and the staff had advised him that either Leadbetter or Mizell could do the job. Nevertheless, Gilley told Leadbetter that he decided to recommend Mizell to the Board of Trustees. On December 20, 1999, the Board of Trustees' Executive Committee unanimously elected her Vice President, General Counsel, and Secretary.

Following his decision to hire Mizell, Gilley attempted to address budgetary woes by streamlining and restructuring of the University's administration. One of the new job titles created via the restructuring was Equity and Diversity Administrator. The job paid $35,000 less than Leadbetter was earning as Associate General Counsel.

Gilley believed that experience in race relations and a commitment to diversity and civil rights were important qualities for the Equity and Diversity Administrator position. Theotis Robinson, an administrative aide in the University's Governmental Relations Office, had those qualities. Although Robinson did not have a bachelor's degree, he was a member of the Knoxville City Council, served as the University's liaison to the Legislative Black Caucus in Nashville, acted as an informal government liaison to the City of Knoxville and Knox County governments, co-chaired an organization of African-American and Caucasian community leaders, and advised the University on issues important to state and local African-American political leaders.

Gilley needed an Equity and Diversity Administrator who could advise him directly on relations with African-American students, faculty, administrators, and local leaders. In Gilley's estimation, Robinson was the best candidate for the position. Thus, Gilley assigned Robinson the job. Leadbetter claimed he was unaware that Gilley had appointed Robinson to the position of Equity and Diversity Administrator until after the appointment was announced. While he learned that Robinson would be promoted to the staff vice president level before the promotion was finalized, Leadbetter did not apply for the position--one that paid $11,400 less than he was earning as an associate general counsel--because Leadbetter was not invited to do so. It was Leadbetter's understanding that Robinson would be recommended for appointment to Vice President without the position being advertised or candidates solicited,

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all purportedly in violation of the University's employment policies and procedures, the University's affirmative action program and the stipulation of settlement set forth in Geier v. Alexander, 593 F.Supp. 1263 (M.D.Tenn.1984)1.

Leadbetter believed that any under-representation of African-Americans in the University-Wide Administration (the "UWA") administrator classifications in 1999 or 2000 was not due to racial discrimination. Thus, he thought that Gilley's use of race in addressing under-representation was unconstitutional.

On November 30, 2000, Leadbetter filed a reverse gender and race discrimination action against Gilley under 42 U.S.C. & sect; § 1981 and 1983, the Fourteenth Amendment of the United States Constitution, and the Tennessee Human Rights Act, TENN. CODE ANN. § 4-21-101, et seq. Leadbetter claimed that from the time Gilley was employed, Gilley repeatedly articulated his intent to hire and promote women and minorities. Gilley would describe the promotion system at the University as sort of "inbreeding" for the promotion of white males, but used the phrase "natural chain of progression" when a woman was promoted. He insisted that search committees seek out women and minorities for University jobs.

According to Leadbetter, Gilley requested a job description to be prepared for the Vice President, General Counsel, and Secretary position which specifically favored Mizell and limited or excluded any serious competition. Leadbetter also asserted that the appointment of a search committee composed of a single person--Roger Dickson--was unprecedented at the University for a high level position and that Dickson's appointment fell outside the University's pattern and practice of appointing minorities and women to search committees. Furthermore, Leadbetter claimed that Mizell failed to adequately specify lease payments when she created the agreement transferring the University Hospital and that a minimal investigation of Mizell's credentials would have revealed that she had minimal trial experience.

As to Robinson, Leadbetter stated that Gilley did not advertise the position of Equity and Diversity Administrator prior to Robinson's appointment and did not consider any other candidates for the position because Gilley intended for Robinson to have the position because Robinson was African-American. Leadbetter claimed that Gilley selected the bachelor degree-less Robinson over a number of qualified individuals who were already in the "natural chain of progression" including white employees Sarah Phillips and Jennifer Richter. According to Leadbetter, Gilley would not have promoted any white male lacking a college degree to the position of Equity and Diversity Administrator.

Gilley ultimately moved for summary judgment. According to Gilley, Leadbetter was not in any way within his contemplation when he named Robinson as one of five staff vice presidents in August 2000

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for several reasons. The additional responsibilities added at the time (oversight for affirmative action offices in Memphis and Tullahoma, Tennessee) were a small incremental addition to Robinson's existing position. There was no "vacancy" and no other "candidate" because Robinson was already performing the large majority of the job. Gilley claimed there was no reason for him to consider Leadbetter for a staff vice president job because Leadbetter was not on the president's staff whereas Robinson was. Leadbetter did not...

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