Johnson v. University of Cincinnati

• Decision Date: 29 January 1999
• Docket Number: No. 98-3016,98-3016
• Citation: 215 F.3d 561
• Parties: (6th Cir. 2000) John B. Johnson, Plaintiff-Appellant, v. University of Cincinnati, Joseph A. Steger, and Donald C. Harrison, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 561

215 F.3d 561 (6th Cir. 2000)

John B. Johnson, Plaintiff-Appellant, v. University of Cincinnati, Joseph A. Steger, and Donald C. Harrison,

Defendants-Appellees.

No. 98-3016

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: January 29, 1999

Decided and Filed: June 1, 2000

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati; No. 96-00727--Sandra S. Beckwith, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Marc D. Mezibov, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, Ted L. Wills, Cincinnati, Ohio, for Appellant.

John B. Pinney, Michael A. Roberts, GRAYDON, HEAD & RITCHEY, Cincinnati, Ohio, for Appellees.

Before: KENNEDY, DAUGHTREY, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. KENNEDY, J. (pp. 586-89), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Plaintiff, John B. Johnson, who is African American, was employed by the University of Cincinnati ("the University") as its Vice President of Human Resources and Human Relations from August 1, 1993 to January 17, 1996, when he was terminated. Central to Plaintiff's role as Vice President of Human Resources was his management of the University's affirmative action program, for which Plaintiff had primary responsibility. Following his termination, Plaintiff filed suit against the University; Dr. Joseph Steger, the University's president; and Dr. Donald Harrison, the University's Senior Vice-President and Provost of University Hospital, alleging that Defendants discriminated against him by removing him from his duties because of Plaintiff's advocacy on behalf of minorities and his filing of an EEOC claim against the University. The district court dismissed or granted summary judgment on all nine counts of Plaintiff's complaint. Plaintiff now appeals the district court's order granting summary judgment to Defendants on his claim for race and national origin discrimination brought under 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e-2; retaliatory discrimination brought under the opposition and participation clauses of 42 U.S.C. § 2000e-3(a); as well as his claim brought under 42 U.S.C. § 1983 for violation of his right to free speech under the First Amendment. For the reasons set forth below, we AFFIRM in part, REVERSE in part, and REMAND the case back to the district court for trial.

BACKGROUND

A. The University and its Affirmative Action Policy

As a federal contractor, the University is required to meet certain affirmative action obligations. See 41 C.F.R. § 60-1.40; Executive Order No. 11246. These obligations consist of, among other things, maintaining and updating affirmative action programs; analyzing the University's workforce by race and sex; analyzing areas of underutilization of women and minorities; maintaining data regarding the employment of women and minorities; and analyzing the impact of the University's employee selection process. See 41 C.F.R. § 60-1.40; § 60-2.11(a); § 60-2.11(b); § 60-3.4; § 60-3.15.

In 1978, the Office of Federal Contract Compliance and Programs ("OFCCP") investigated the University and found pay disparities among African Americans and women in the University; the OFCCP therefore concluded that the University was in violation of its affirmative action duties. See 41 C.F.R. § 60-1.26. As a result, the University and the OFCCP entered into a Conciliation Agreement wherein the University agreed to implement procedures to prevent discrimination against women and minorities. These procedures consisted of identifying underutilized positions, creating a list of new candidates for new positions, and ensuring that the list included names of qualified women and minorities. If a non-minority male applicant was selected and if women and minorities did not appear on the candidate list, then the employing unit at the University was required to give written reasons for the omissions. The affirmative action office was to approve or disapprove the selected person after a determination of whether sex or race was a factor in the selection.

In an effort to comply with the mandates of the Conciliation Agreement regarding the University's hiring practice, the University developed a form - known as the A-900 form or A-900 process - that tracked open employment positions. Under this process, the hiring manager of each department wishing to fill a vacant position, no matter how high or low in the organizational structure, was required to complete an A-900 form and submit it to the affirmative action office ("AAO"). In turn, the AAO would inform the hiring manager whether the vacant position was underutilized; meaning whether the position was one that statistically had fewer women and minorities employed than would be expected given the makeup of the overall population.

If the position to be filled was underutilized, the hiring manager was required to advertise the open position, assemble a pool of candidates, select a candidate, and send the information to the AAO. If the selected candidate was not a member of the underutilized class, then the affirmative action director and the hiring manager would consider whether sufficient numbers of members of the underutilized class were considered. The affirmative action director could reject the selected candidate and require the hiring manager to begin a new search. However, Dr. Steger as president of the University, could waive the A-900 process and allow a hiring manager to hire a non-minority candidate, despite the underutilization of minorities within the particular department, and over the objection of the AAO.

Following the expiration of the Conciliation Agreement in 1980, the University's AAO fell into a state of disarray. In the spring of 1988, Dr. Steger appointed the President's Advisory Council on Race Relations and Human Decency ("PACRRHD") and charged it with examining issues of race relations at the University. The focus of the PACRRHD was to "create a diverse community in which all members feel a sense of responsibility for the elimination of ignorance, suspicion, prejudice and racism." In a report submitted to Dr. Steger on August 4, 1989, the PACRRHD noted that although African Americans occupied 28% of the University's total staff, they occupied the lower employment categories at the University in vastly disproportionate numbers. For example, African Americans occupied 74% of the service staff, 29% of the technical staff, and 33% of the secretarial staff; however, African Americans occupied only 10% of the executive/administrative staff and 11% of the professional/non-faculty staff. Based on these findings, the PACRRHD recommended a new comprehensive affirmative action initiative at the University with specific goals toward increasing the number of minorities in upper level positions. The PACRRHD also recommended the creation of a new high level position to head the affirmative action program. The individual selected for this position would report directly to the president and have Cabinet-level status, and would be responsible for "following current Affirmative Action functions, as well as the development of new programs, policies and diversity initiatives to improve and enhance the quality of life." In response to the PACRRHD's recommendations, the Vice President of Human Resources and Human Relations ("VPHHR") position was created wherein the individual occupying that role would be in charge of both human resources and the affirmative action program.

B. Plaintiff's Role and Course of Employment at the University

In 1993, Dr. Steger recruited Plaintiff to serve as the VPHHR following a national search. Plaintiff signed a three-year contract and began his duties as VPHHR on August 1, 1993. Plaintiff was the second person to occupy this role; and there was a period of time before Plaintiff was appointed that the position was unoccupied and the AAO was without a permanent head. As a result, at the time Plaintiff was brought aboard, the AAO was in state of disorder and flux. There was a back log of A-900 forms that had accumulated during the time the AAO was without a head, as well as large number of A-900 waivers. For example, there were approximately 300 waivers of the A-900 process from 1992 to May of 1994. Plaintiff expanded the AAO, and hired George Wharton as its director in September of 1994.

Plaintiff was troubled by what he perceived to be the excessive number of waivers of the A-900 process, and in July of 1994, Plaintiff sent a memorandum to the Cabinet members entitled, "Is there an Affirmative Action Commitment?" In the memorandum, Plaintiff expressed his concern about the number of waivers in the A-900 process, questioned the University's commitment to equal employment opportunities, and warned that continued violations could cause the OFCCP to enforce a new conciliation agreement.¹

Throughout 1994 and 1995, Plaintiff became particularly concerned with the University's commitment to affirmative action regarding University Hospital's association in the "Alliance," a private, non-profit health care management corporation with a single board of directors created to manage and control four of the major hospitals in the community. By joining the Alliance, the University surrendered daily operation of University Hospital to the health care management group, although those employed there remained employees of the University until January 1, 1997. Despite his requests, Plaintiff was not allowed to play any meaningful role with respect to Alliance, even though the human resource counterparts from the other hospitals involved regularly contributed.

Under the Alliance agreement, the University was required to hire a Senior Executive Officer ("SEO") to run the University Hospital's daily operations....