Adams v. the Trustees of The Univ. of North Carolina–wilmington

• Decision Date: 06 April 2011
• Docket Number: No. 10–1413.,10–1413.
• Parties: Michael S. ADAMS, Plaintiff–Appellant,v.The TRUSTEES OF THE UNIVERSITY OF NORTH CAROLINA–WILMINGTON; M. Terry Coffey; Jeff D. Etheridge, Jr.; Charles D. Evans; Lee Brewer Garrett; John A. McNeill, Jr.; Wendy F. Murphy; Linda A. Pearce; R. Allen Rippy, Sr.; George M. Teague; Krista S. Tillman; Dennis T. Worley; Katherine L. Gurgainus, all in their individual and official capacities; Rosemary DePaolo, individually and in her official capacity as Chancellor of the University of North Carolina–Wilmington; David P. Cordle, individually and in his official capacity as Dean of the College of Arts and Sciences at the University of North Carolina–Wilmington; Kimberly J. Cook, individually and in her official capacity as Chair of the Department of Sociology and Criminal Justice at the University of North Carolina–Wilmington; Diane Levy, individually and in her official capacity as former interim Chair of the Department of Criminology and Sociology at the University of North Carolina–Wilmington, Defendants–Appellees.American Association of University Professors; Thomas Jefferson Center for the Protection of Free Expression; Foundation for Individual Rights in Education, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

640 F.3d 550

111 Fair Empl.Prac.Cas. (BNA) 1665

267 Ed. Law Rep. 501

32 IER Cases 1

Michael S. ADAMS, Plaintiff–Appellant,

v.The TRUSTEES OF THE UNIVERSITY OF NORTH CAROLINA–WILMINGTON; M. Terry Coffey; Jeff D. Etheridge, Jr.; Charles D. Evans; Lee Brewer Garrett; John A. McNeill, Jr.; Wendy F. Murphy; Linda A. Pearce; R. Allen Rippy, Sr.; George M. Teague; Krista S. Tillman; Dennis T. Worley; Katherine L. Gurgainus, all in their individual and official capacities; Rosemary DePaolo, individually and in her official capacity as Chancellor of the University of North Carolina–Wilmington; David P. Cordle, individually and in his official capacity as Dean of the College of Arts and Sciences at the University of North Carolina–Wilmington; Kimberly J. Cook, individually and in her official capacity as Chair of the Department of Sociology and Criminal Justice at the University of North Carolina–Wilmington; Diane Levy, individually and in her official capacity as former interim Chair of the Department of Criminology and Sociology at the University of North Carolina–Wilmington, Defendants–Appellees.American Association of University Professors; Thomas Jefferson Center for the Protection of Free Expression; Foundation for Individual Rights in Education, Amici Supporting Appellant.

No. 10–1413.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 26, 2011.Decided: April 6, 2011.

ARGUED: David Austin French, Alliance Defense Fund, Columbia, Tennessee, for Appellant. Thomas J. Ziko, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees. ON BRIEF: Joseph J. Martins, Travis C. Barham, Alliance Defense Fund, Columbia, Tennessee; Robert M. Schmidt, Patrick Henry Justice Center, Laurinburg, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, John P. Scherer II, Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees. Martha S. West, General Counsel, Rachel Levinson, American Association of University Professors, Washington, D.C.; Robert M. O'Neil, J. Joshua Wheeler, The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, Virginia, for Amici Supporting Appellant.Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.Affirmed in part, reversed in part, and remanded by published opinion. Judge AGEE wrote the opinion, in which Chief Judge TRAXLER and Judge NIEMEYER joined.

OPINION

AGEE, Circuit Judge:

Michael S. Adams appeals from the judgment of the District Court for the Eastern District of North Carolina awarding summary judgment to the sixteen defendants (collectively “Defendants”), each of whom is affiliated with Adams' employer, the University of North Carolina–Wilmington (“UNCW” or “the University”).¹ Adams brought three claims against the Defendants alleging religious and speech-based discrimination, as well as retaliation, in relation to the decision not to promote him to the position of full professor at UNCW. The district court granted the Defendants' motion for summary judgment on all claims, concluding they were entitled to judgment as a matter of law. For the reasons set forth below, we affirm in part, and reverse and remand in part the judgment of the district court.

I. Factual and Procedural Background

A.

In 1993, UNCW, a public university of the state of North Carolina, hired Adams as an assistant professor of criminology in the Department of Sociology and Criminal Justice (“the Department”). Over the next five years Adams earned strong teaching evaluations from both peers and students. During this period, he received two faculty awards, published several articles, and was involved in numerous service-related activities at UNCW and in the larger community. In 1998, Adams was promoted to the tenured position of associate professor.

In 2000, Adams became a Christian, a conversion that transformed not only his religious beliefs, but also his ideological views. After his conversion, Adams became increasingly vocal about various political and social issues that arose within both the UNCW community and society at large. He became a regular columnist for Townhall.com and appeared on radio and televisions broadcasts as a commentator. In 2004, he published a book entitled Welcome to the Ivory Tower of Babel: Confessions of a Conservative College Professor, a collection of previously-published columns and new material. Throughout this time, Adams continued to receive strong teaching reviews from students and faculty.

As Adams cultivated his conservative standing beyond the UNCW campus, some tension evolved within the UNCW community. Some UNCW employees indicated discomfort with Adams' views and his manner of expressing them. From time to time, UNCW officials fielded complaints from members of the Board of Trustees, the faculty and staff, and the general public about Adams' public expressions of his views. Correspondence about the complaints indicates that while UNCW officials, some of whom are named Defendants, occasionally expressed personal disagreement with the content of Adams' columns, they uniformly recognized that the First Amendment and principles of academic freedom protected Adams' writings and other expressions of his views. At one point, defendant Levy, then interim chair of the Department, suggested that Adams alter the tone of his speech to be less “ ‘caustic’ ” and more “ ‘cerebral’ ” “like William F. Buckley” in order to “ ‘make things a whole lot more pleasant around the office.’ ” (J.A. 43.)

In 2004, Adams applied for promotion to the position of full professor. At UNCW, the promotion process is self-initiated, meaning that Adams could apply at any time and there was not an advertised “opening” for the position. The UNCW Faculty Handbook (“the Handbook”) described the criteria for a promotion. Applicants are “evaluated in four areas: teaching, research or artistic achievement, service, and scholarship and professional development” and an applicant's record “should demonstrate evidence of steady growth and maturation.” (J.A. 649.) Moreover, “excellence in teaching and in artistic achievement or research ... rank highest among the criteria for tenure and promotion decisions.” (J.A. 649.) The Handbook specifically notes that “meeting any quantifiable measures provided does not guarantee the award of tenure or promotion.” (J.A. 649–50.) Rather, the applicant must “provide persuasive documentation that qualitative criteria as well as any quantifiable accomplishments have been met.” (J.A. 649.)

The Handbook also contains specific explanations of the requirements for promotion to full professor. For the teaching component, “excellence is expected” and “will be reflected in teaching performance and content and in teaching activities outside the classroom,” as well as in the sharing of teaching skills. (J.A. 651.) With respect to research accomplishment, faculty are “expected to demonstrate a tangible record of professionally-reviewed substantial contributions to one's discipline” including “more tangible evidence of accomplishment than that of the associate professor rank, [although] the difference in artistic and research expectations for a full professor is not solely quantitative. Greater quality, maturity, significance and originality ... are expected at this rank.” (J.A. 651.) For the service component, the criterion is as generally described above, except that candidates “must show evidence of leadership in ... various service areas.” (J.A. 653.) “Scholarship and professional development are continuing expectations of every faculty member,” and are demonstrated “primarily in growth and improvement in teaching, research accomplishments[,] ... and service contributions.” (J.A. 653.)

Adams' application included standard information regarding his education and professional history, as well as his academic status at UNCW, including courses taught, information about advisees, committees, and boards he had served on at UNCW, the results of recent peer evaluations, and honors and awards he had earned during his time at UNCW. Adams also listed ten authored or co-authored “[r]efereed publications (including juried or peer-reviewed ... writings)” that had been published since 1992, and one additional article of this type that had been accepted for publication. (J.A. 155–56.)

Relevant to the issues in this case, Adams' application also cited some of the external writings and appearances he had made since his conversion experience in 2000. Adams also listed non-refereed publications as part of his research and scholarship, including his book Welcome to the Ivory Tower of Babel and another book he had co-authored that was under consideration for publication, Indoctri–Nation: How universities are destroying America.² Under the “Service” heading, J.A. 162, in the “Optional subcategories” subheading, J.A. 163, Adams included the following:

Please note that my informal advising to student organizations, especially Christian groups, is also a prominent part of my service activities....

Also note that I use my national column (published on TownHall.com and sometimes in Human Events) to help Christian groups fight discrimination. One prominent example is a Florida college that tried to ban a Christian group from showing The Passion of the Christ. My column revealed that the school had falsely claimed to have a ban on showing “R” rated movies. When I discovered they had showed secular “R” rated movies in the past, the school reversed its position. I routinely expose such cases of anti-religious bigotry on our campuses.

(J.A. 164.) And under the “other” subheading for “Service,” J.A. 165, Adams referred to being “an activist in the campus free speech movement[, which has] generated a good deal of publicity for UNCW,” and he included a positive quote about himself from “nationally syndicated talk show host Neal Boortz.” (J.A. 165.) As part of his community service, Adams...