John B. Johnson v. UNIVERSITY OF CINCINNATI, JOSEPH A. STEGER, and DONALD C. HARRISON

44 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
University’s affirmative action procedures and occurred while
he was acting in his official position and consisted only of a
letter and memos addressed to the president and other
members of the Board of Trustees (of which plaintiff was a
member as Vice President of Human Relations), I think that
the University had a significant interest in regulating the
speech to make certain that it was presented in the most
informative and helpful manner. Had the plaintiff presented
his concerns in a public venue, my resolution of this issue
would be different. The plaintiff, however, limited his speech
to the confines of the University and conveyed his views in
his official position as to the success or lack of success of the
University’s affirmative action program. I believe that in this
situation the plaintiff’s speech is not entitled to First
Amendment protections. I think that the district court did not
err in granting summary judgment in favor of the defendants
on plaintiff’s First Amendment claims.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0184P (6th Cir.)
File Name: 00a0184p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J OHN B. J OHNSON ,
Plaintiff-Appellant,
v.
UNIVERSITY OF C INCINNATI,
J OSEPH A. S TEGER, and
DONALD C. HARRISON ,
Defendants-Appellees.
;>

1
No. 98-3016
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 96-00727—Sandra S. Beckwith, District Judge.
Argued: January 29, 1999
Decided and Filed: June 1, 2000
Before: KENNEDY, DAUGHTREY, and CLAY, Circuit
Judges.
_________________
COUNSEL
ARGUED: Marc D. Mezibov, SIRKIN, PINALES,
MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellant.
John B. Pinney, GRAYDON, HEAD & RITCHEY,
Cincinnati, Ohio, for Appellees. ON BRIEF: Marc D.

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2 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
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.
CLAY, J., delivered the opinion of the court, in which
DAUGHTREY, J., joined. KENNEDY, J. (pp. 39-44),
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
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 43
The majority can point to no case where discrimination based on
general advocacy of minority rights has been found to violate either
§ 1981 or Title VII. What if the general advocacy is for a plan that fails
to meet the standard of City of Richmond v. J.A. Croson Co., 488 U.S.
469, 109 S. Ct. 706, 102 L.Ed.2d 854 (1989)?
claim under the participation clause of section 2000e-3(a)
should be liberally construed and his termination occurred in
close proximity to his filing of an EEOC claim while
complaints with respect to his performance occurred over an
extended period, I agree with the majority that the district
court erred in granting summary judgment on this claim.
Finally, I turn to plaintiff’s claims under the First
Amendment. While I am aware of the cases in which courts
have held that discussions of affirmative action are a matter
of public concern, I do not think those cases apply where the
speaker is a high level affirmative action official and the
communications are within the organization. In his position
at the University, the plaintiff’s job was to advocate on behalf
of minorities. Technically, every word that the plaintiff spoke
during his tenure in this position concerned affirmative action
because of the nature of his job. In the unique circumstances
of this case, I do not think that the plaintiff is entitled to the
protections of the First Amendment unless he can show that
his speech was not integrally connected with his job. When
considering whether an employee’s speech is protected by the
First Amendment, this Supreme Court has adopted a two part
inquiry. First, the Court asks whether the speech was of
public concern. If that question is answered in the
affirmative, the next question is whether the plaintiff’s
interest in speaking outweighed the defendant’s interest in
regulating his speech. See Connick v. Meyers, 461 U.S. 138,
146, 103 S.Ct 1684, 1690, 75 L.Ed.2d 708 (1983); Pickering
v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35,
20 L.Ed.2d 811 (1968). In this case, I do not think that the
inquiry can be separated into two steps. Instead, the two steps
merge when the employee’s position requires him to speak on
issues that normally would be of public concern. Because the
plaintiff’s speech concerned the inner workings of the

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42 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
2When you come to the claim that Dr. Steger violated § 1981 because
of plaintiff’s general advocacy for the use of the affirmative action plan
and disagreement over the President’s use of the waiver for particular
jobs, the plaintiff’s claim is even more murky. Plaintiff has not claimed
that the University of Cincinnati violated section 1981 or Title VII in its
failure to hire any specific individuals. While he made that claim on his
own behalf in the District Court, he has not appealed its dismissal. His
disagreement with the University related to the implementation of its
affirmative action plan, a plan the University maintained even though the
term of the plan had expired and which was adopted without any finding
or admission of discrimination.
The failure to hire the African-American candidate as head of the
Alliance hospitals was not even covered by the affirmative action plan.
Nor did Dr. Steger participate in it.
matters in the course of employment. I do not believe this
case can be distinguished from Holden. An affirmative action
official’s job is to advocate on behalf of minorities and the
majority’s holding that when an affirmative action official
disagrees with his employer he has a cause of action under
Title VII creates a disincentive for employers in their decision
to establish an affirmative action officer position. The
majority attempts to distinguish Holden by stating that the
plaintiff was not protesting the implementation of an
affirmative action program, but rather, he was protesting
discrimination in hiring. In reality, there is no distinction.
The plaintiff contends that he was terminated for his active
advocacy on behalf of minorities, yet, this was his job. If he
was not performing his job to the satisfaction of his
employers, the University is entitled to dismiss him. The
plaintiff has presented no evidence that his advocacy went
beyond the scope of his employment, and I believe this is
significant. I do think that the plaintiff’s employment as a
high level affirmative action officer does and should make a
difference in the analysis of his claims. Because it was his
job to advocate on behalf of minorities I do not think he is
entitled to protected status for his general advocacy on behalf
of minorities. For this reason, I believe that the defendants
are entitled to summary judgment on plaintiff’s claims under
section 1981, section 2000e-2 of Title VII and the opposition
clause of section 2000e-3(a)Title VII.2 Because the plaintiff’s
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 3
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

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4 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
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
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 41
section 2000e-2 claims against the University and Dr. Steger
in his official capacity cannot survive.
I also am at a loss as to how the majority can sustain
plaintiff’s § 1981 claim against Dr. Harrison in his individual
capacity. The plaintiff has presented no evidence that Dr.
Harrison influenced the University and its officials in the
decision to relieve the plaintiff of his duties. In his brief to
this court, the plaintiff does not even address the viability of
his § 1981 claim against Dr. Harrison. Instead, he focuses his
argument on Dr. Steger’s role in his dismissal. I believe the
plaintiff chose this tactic because there were no grounds upon
which to find Dr. Harrison liable for a § 1981 violation and I
believe that it is error for this court not to dismiss plaintiff’s
§ 1981 claim against Dr. Harrison in his individual capacity.
Plaintiff’s claims under § 1981 and § 2000e-2 of Title VII,
along with plaintiff’s retaliation claim under the opposition
clause of Title VII, also fail because plaintiff has failed to
establish that he is a member of a protected class. Although
the majority attempts to show that it has been long established
that an advocate for a minority who has been discriminated
against is protected under Title VII and § 1981, I believe that
the majority’s analysis of our prior cases is fundamentally
flawed. I agree with the majority that individuals are
permitted to pursue claims of discrimination based on their
advocacy of another person’s rights, but, in all of these cases,
the individual is advocating upon the behalf of a specific
individual or specific individuals whose constitutional rights
or Title VII rights have been violated. Plaintiff’s claim is not
based on his advocacy of specific individuals, but rather, he
claims protected class status based on his general advocacy.
When we extend protected class status to individuals like the
plaintiff, we undermine the protections afforded by Title VII
and the Constitution. Plaintiff’s claim against the University
and its employees basically boils down to a disagreement over
the implementation of an affirmative action program. This
Circuit, in Holden v. Owens-Illinois, 793 F.2d 745, 751 (6th
Cir. 1986), held that an employee does not obtain protected
status simply because the employee handles affirmative action

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40 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
give me adequate support for my position on both
campuses.
The plaintiff does not raise any issues contending that he experienced
discrimination based on his race or national origin and any attempt to
construe his claim as anything but a claim based on his advocacy of
minority rights is erroneous. Recasting the plaintiff’s claim as one of
advocacy on behalf of specific individuals as the majority appears to do,
rather than one of general advocacy, fails because the plaintiff presented
no evidence connecting his advocacy on behalf of these specific
individuals to his discharge.
advocacy, the direct evidence of discrimination also must
concern advocacy. I find no direct evidence in the record
establishing that any of the defendants discriminated against
the plaintiff based on his advocacy; therefore, the plaintiff’s
claim can survive only if he can establish a prima facie case
of discrimination under the McDonnell Douglas-Burdine test.
As stated in the majority opinion, the plaintiff must show that
(1) he is a member of a protected class; (2) he was qualified
for his job; (3) he suffered an adverse employment action; and
(4) he was replaced by someone outside the protected class or
was treated differently than a similarly situated individual
outside the protected class. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d
668 (1973). I do not believe that the plaintiff has satisfied
either the first or fourth prong of this test. In my discussion
of plaintiff’s retaliation claim under the opposition clause of
Title VII, I address the plaintiff’s status as a member of a
protected class. For purposes of this analysis, I will limit my
dissent to the plaintiff’s failure to establish the existence of
the fourth prong, although I believe that my analysis of
plaintiff’s protected status below applies equally to these
claims. The protected class to which the plaintiff claims
membership can be classified as the class of advocates for
minorities. The plaintiff has presented no evidence to
establish either that he was replaced by someone who was not
an advocate for minorities or that other “non-advocates” who
were similarly situated were treated differently. The
plaintiff’s has failed to establish a prima facie case of
discrimination; therefore, his section 1981 claims against Dr.
Steger and Dr. Harrison in their individual capacity and his
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 5
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

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6 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
1The OFCCP in fact conducted a second audit of the University
which was completed on May 26, 1995, and thereafter sent the University
a completed audit outlining nine violations. However, over the objections
of Plaintiff and Wharton, Dr. Steger retained the services of an outside
law firm to respond to the notice from the OFCCP rather than allow
Plaintiff the opportunity to respond to the violations.
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. The SEO was to be an
Alliance employee who reported directly to the President of
the Alliance; however, the University participated in the
hiring selection for this position. An outside search firm was
hired to facilitate the search. The search firm identified
approximately 200 resumes; out of these resumes, three
candidates were selected for the final vote: a white male, an
African-American male, and a white female. After
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 39
1In his brief to this court, the plaintiff identified three issues for
review. His claims under Title VII, §1981, and the First Amendment
were couched in terms of his advocacy upon behalf of minorities. In
particular, his brief states the issues as follows:
“2. Whether, for Mr. Johnson’s Title VII and 42
U.S.C. §1981 claims, he had a protected status because
he advocated minority rights.
3. Whether, for Mr. Johnson’s First Amendment
retaliation claim, the importance of his advocacy of
minority rights outweighed UC’s interest in
maintaining the operation of its affairs.”
In addition, his complaint to the EEOC stated:
The university employs me as the Vice President for
Human Resources. The institution has obstructed me
from performing my assignment as the executive
authorized for planning and operating human resource
systems for the east and west . . .
President Joseph Stegar tells me that I am authorized to
perform my executive level duties, but he also fails to
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
KENNEDY, concurring in part and dissenting in part.
While I agree with the majority’s resolution of the immunity
issues and Dr. Johnson’s retaliation claim under the
participation clause, I dissent from the majority opinion
because I disagree with the majority’s resolution of the rest of
the plaintiff’s claims. In particular, I disagree with the
majority’s analysis of the plaintiff’s claims under Title VII
and § 1981. I also dissent from the majority’s decision on the
plaintiff’s First Amendment claims.
The majority holds that the plaintiff presented direct
evidence of the defendants’ discrimination through his
testimony concerning University officials’ expressions of race
consciousness during the hiring process. This testimony,
however, does not provide direct evidence of the defendants’
discrimination against the plaintiff based on his advocacy of
minority rights. 1 Because plaintiff’s claim is based on his

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38 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
disagree with the district court’s conclusion that the
University’s interest outweighed Plaintiff’s interest in
speaking out on behalf of the University’s failure to comply
with its affirmative action policies. Even if Plaintiff’s speech
delayed the University’s hiring of prospective employees, this
does not rise to the level of having a detrimental impact on
close working relationships or undermining a goal or mission
of the University. See Meyers, 934 F.2d at 730. To the
contrary, Plaintiff’s speech regarding the University’s failure
to comply with its A-900 process promoted or advanced the
University’s alleged goal of employment equality for women
and minorities; his speech did not undermine that goal.
Furthermore, the district court’s grant of summary judgment
based upon its determination that there were no material
factual disputes regarding the disruptive impact of Plaintiff’s
complaints upon the University’s business was improper in
any event; the contested issues of fact, based upon the
parties’ differing characterizations of the evidence, are very
much in dispute and would be best left for determination at
trial. See Mount Healthy City Sch. Dist. Bd. of Educ., 429
U.S. at 287. We therefore reverse the district court’s order
granting summary judgment to Dr. Steger and Dr. Harrison
individually on this claim.
CONCLUSION
For the above-stated reasons, we AFFIRM the grant of
summary judgment to the University on Plaintiff’s claims
brought under the 42 U.S.C. § 1981 and § 1983 on Eleventh
Amendment immunity grounds; and to Dr. Steger and Dr.
Harrison individually on Plaintiff’s claims brought under Title
VII. However, we REVERSE the grant of summary
judgment to the University and Dr. Steger in his official
capacity on Plaintiff’s claims brought under § 2000e-2, and
under both the opposition and participation clauses of
§ 2000e-3; and to Dr. Steger and Dr. Harrison on Plaintiff’s
claims brought under § 1981 and § 1983. We also
REVERSE any corresponding pendant state law claims and
REMAND the matter for trial.
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 7
interviewing all three candidates, Plaintiff cast his vote in
favor of the African-American male based on the candidate’s
overall experience as well as the fact that Plaintiff found him
to be the strongest of the three candidates. However, the
white male was selected for the SEO position by receiving the
majority of votes by the selection committee. At a July 25,
1994 meeting attended by Dr. Harrison and Plaintiff
following the SEO selection, it was agreed that Plaintiff
would direct the search for the next two executive level
positions to become available at the University Hospital, and
that efforts would be made to target minorities to fill these
positions. Plaintiff sent a memorandum dated July 27, 1994,
to Dr. Harrison detailing Plaintiff’s understanding of the
outcome of the meeting.
In August of 1995, Dr. Harrison sought a waiver of the A-
900 process to fill the position of Vice Chairman of the
Department of Surgery for the College of Medicine.
Specifically, Dr. Harrison requested that he be able to hire Dr.
James Hurst, a former member of the College of Medicine
faculty, without going through the A-900 process because he
knew and endorsed the former member’s experience and
abilities. Plaintiff sent a letter dated September 21, 1995, to
Dr. Steger protesting Dr. Harrison’s waiver of the A-900
process and questioning the University’s commitment to
providing equal opportunities in employment. Despite
Plaintiff’s protestations, Dr. Steger approved the A-900
waiver at Dr. Harrison’s request.
A few months later, in November of 1995, the University
was negotiating with District 925 of the Service Employees
International Union (“925") and, as VPHHR, Plaintiff
participated in the negotiations. District 925 represents the
secretarial and support staff of the University. The contract
between the University and 925 employees was up for
renewal, and the critical issue during the negotiations was
tuition remission; that is, the amount of money 925
employees would have to reimburse the University for the
cost of tuition waivers granted by the University in the event
the employee failed to achieve a certain minimum grade.

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8 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
This issue was the final barrier to the University and 925
reaching an agreement, and the University was prepared to
accept the cost of a strike if 925 did not agree to the
University’s terms.
Dr. Steger met with Plaintiff and Stephanie Echols, the
University’s representative at the negotiations, to discuss the
status of the 925 matter. There is a dispute as to what
transpired at the meeting inasmuch as Dr. Steger contends
that the three discussed a proposal from 925, which Dr. Steger
rejected; while Plaintiff contends that there was no proposal
rejected at the meeting. However, that aside, the parties are
in agreement that it was understood that the University would
risk a strike rather than comply with the 925 remission
demands. At the close of the meeting, Dr. Steger indicated
that he had to leave to attend a dinner engagement, but that he
could be reached at home later in the evening if developments
were made in the 925 negotiations.
Echols negotiated with 925 until late into the evening,
repeatedly updating Plaintiff on her progress. According to
Echols, each time that she updated Plaintiff, he repeated Dr.
Steger’s warning that the University would accept a strike
rather than concede to tuition remission. Finally, at about
11:30 p.m., Echols tentatively agreed with 925 members on
a proposal that she believed would satisfy the University and
informed Plaintiff of the proposed settlement. However,
according to Plaintiff, he informed Echols at that time that the
tentative settlement to which she agreed was not in line with
what the University was prepared to accept. Echols replied
that the parties had departed, and if the tentative settlement
was not acceptable, it could be addressed later.
Due to the late hour -- about midnight by this time --
Plaintiff decided to wait until the morning to telephone Dr.
Steger and inform him of the proposed settlement. Plaintiff
telephoned Dr. Steger at his office at approximately 7:00 a.m.,
the next day; however, Plaintiff did not speak with Dr. Steger
because he had already left for a breakfast meeting with the
deans of the University. News of the proposed settlement
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 37
his complaints and concerns to Cabinet officials rather than
the general public, is of no consequence because the subject
matter of Plaintiff’s complaints was an established matter of
public concern in this circuit — “an opinion concerning the
general policy of affirmative action . . . .” See id.; see also
Chappel v. Montgomery County Fire Protection Dist. No. 1,
131 F.3d 564, 579 (6th Cir. 1997) (“Constitutional protection
for speech on matters of public concern is not premised on the
communication of the speech to the public.”). The plaintiff
in Rankin voiced her opinion about the President in a private
conversation which was later reported to her employer;
however, the Supreme Court found that the speech, even
though internal, was nonetheless of a public concern and
therefore protected because it involved the President. See
Rankin, 483 U.S. at 386. The same reasoning applies to this
case.
Therefore, having found that Plaintiff’s speech was a matter
of public concern, the next relevant inquiry under this claim
concerns comparing the University’s proclaimed need to run
an efficient organization against Plaintiff’s right to speak. See
Pickering, 391 U.S. at 568. “In order to justify a restriction
on speech of public concern by a public employee, plaintiff’s
speech must impair discipline by superiors, have a detrimental
impact on close working relationships, undermine a legitimate
goal or mission of the employer, impede the performance of
the speaker’s duties, or impair harmony among co-workers.”
Meyers, 934 F.2d at 730.
Here, the district court found that Plaintiff’s speech at issue
was a matter of public concern, but that the University’s
interest outweighed Plaintiff’s right to free speech in this
context, because Plaintiff’s verbal complaints about the
University’s failure to comply with its A-900 procedure was
“causing a tremendous disruption in the University’s ability
to deliver its services.” (J.A. at 100088.) The district court
based its conclusion on various evidence in the record that
Plaintiff had been tying up employment decisions within the
University because of his protests regarding the University’s
failure to follow its affirmative action program. Id. We

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36 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
contravention of city policy on affirmative action” to two
employees of an organization the purpose of which was to
assist minorities in competing for jobs. Id. at 727. The
plaintiff claimed that his statements on affirmative action led
to his constructive discharge. Id. at 729. In finding that the
plaintiff’s statements were protected under the First
Amendment in that they addressed a matter of public concern,
we noted that the case was “analogous to Rankin [v.
McPherson], not Connick [v. Myers].” Id. We then opined
as follows:
In Connick permissible employment action was taken as
a result of an internal office dispute about a transfer, and
the speech was concerned only with internal office
policy. In Rankin the employee had no dispute with her
employer until she stated at work that if a second attempt
were made on the President’s life she hoped it would be
successful. The court held that in context the speech
addressed the employee’s dissatisfaction with the
President’s cuts in Medicaid, CETA and welfare benefits.
The Court said that “conversation addressing the
policies of the President’s administration . . . [made] on
the heels of a news bulletin regarding what is certainly a
matter of heightened public attention: an attempt on the
life of the President,” is plainly a matter of public
concern. Rankin, 483 U.S. at 386, 107 S. Ct. at 2898.
The speech scrutinized in Rankin was in the form of an
opinion, made in a private conversation later reported to
the employee’s supervisor.
Id. The Meyers Court concluded that “speech about a
politically charged issue like affirmative action — whether
pro or con — should be considered a matter of public
concern.” Id. at 730.
As in Meyers, Plaintiff’s speech was made known to his
supervisor, Dr. Steger, and dealt with the University’s failure
to comply with policies relating to its affirmative action
program. Therefore, Plaintiff’s speech was a matter of public
concern. See 934 F.2d at 730. The fact that Plaintiff directed
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 9
apparently did not escape the news media, because Dr. Steger
was informed of the tentative settlement during his breakfast
meeting with the deans. Dr. Steger was not pleased that
Plaintiff had not reached him with the latest developments,
and sent Plaintiff a letter dated November 15, 1995,
admonishing Plaintiff while claiming that he “was
embarrassed this morning at a breakfast with the Deans when
they asked me the terms of the 925 settlement. I had to say I
did not know they settled -- let alone the terms.” (J.A. at
298.)
Because the Board of Trustees was the body to ultimately
authorize the 925 settlement, Dr. Steger requested that
Plaintiff draft a summary of the settlement for the Board to
review at its next meeting on November 28, 1995. The Board
reviewed the summary; however, it demanded to see the full
text of the agreement before they would approve it, and
planned to meet again on December 18, 1995. In the
meantime, apparently at Plaintiff’s directive, the payroll
department began programming its computers to adjust for
the pay increases and back pay adjustments that were
reflected in the settlement. The payroll department
subsequently informed Dr. Steger that the payroll adjustments
would be reflected on the December 5, 1995, paychecks
despite the Board’s lack of final approval because it was not
possible to reverse the computer adjustments at that time.
Accordingly, Dr. Steger told the payroll department to issue
the checks as adjusted. On December 18, 1995, the Board,
unhappy with the terms of the settlement but constrained by
the adjustments in the payroll system, accepted the 925
settlement.
Plaintiff filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) on December 5, 1995,
alleging race and retaliatory discrimination against the
University. Plaintiff claimed that University officials,
particularly Dr. Harrison, were discriminating against him
because of his race as an African American, and not allowing
him to fully participate in Human Resource matters in regard
to University Hospital. Plaintiff also alleged that he was

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10 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
retaliated against for his protestations regarding the hiring of
the SEO. On or around December 20, 1995, Dr. Steger
informed his Cabinet that Plaintiff had filed a discrimination
complaint with the EEOC. Plaintiff met with Dr. Steger on
December 20, 1995, in the course of a regularly scheduled
meeting, and requested that Dr. Steger provide him with
information regarding what role the Human Resource
department was to play in managing the personnel affiliated
with the Alliance, as well as information regarding the
Board’s criticisms of Plaintiff’s handling of the 925
negotiations. Dr. Steger agreed to provide Plaintiff with this
information in writing within a few weeks.
On January 9, 1996, Dr. Steger sent Plaintiff a
memorandum outlining what Dr. Stegar found to be
deficiencies in Plaintiff’s performance as VPHHR, including
Plaintiff’s handling of the 925 negotiations, as well as
complaints that Dr. Steger had allegedly received from other
departments regarding the length of time it took Plaintiff to
process an A-900 form. Dr. Steger concluded the letter by
indicating that he “questioned [Plaintiff’s] continued ability
to occupy a leadership position in this University.” In
response, Plaintiff sent Dr. Steger a memorandum dated
January 16, 1996, wherein Plaintiff disputed Dr. Steger’s
criticisms. Plaintiff also indicated that he was surprised by
Dr. Steger’s “attack” on his performance since he was hearing
about Dr. Steger’s dissatisfaction for the first time. In fact,
the record indicates that Plaintiff received two written
performance evaluations from Dr. Steger; one in July of 1994,
and the other about a year later. Although the second
evaluation was not as complimentary as the first, Dr. Steger
gave Plaintiff high marks for his leadership and vision for the
future in both evaluations.
The day after receiving Plaintiff’s memorandum, January
17, 1996, Dr. Steger sent Plaintiff a termination notice and
removed Plaintiff from his duties. Plaintiff filed the instant
suit on July 25, 1996.
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 35
147. “Whether an employee’s speech addresses a matter of
public concern must be determined by the content, form, and
context of a given statement, as revealed by the whole
record.” Id. at 147-48.
If Plaintiff’s speech in this regard is found to be a matter of
public concern and thus protected, the next inquiry is whether
Plaintiff’s free speech interests outweighed Defendants’
interest in regulating his speech under the well known
Pickering balancing test. See Pickering, 391 U.S. at 568. If
Plaintiff’s interests in speaking outweighed that of
Defendants’ interests, then Plaintiff’s First Amendment rights
have been violated. See Dambrot v. Central Mich. Univ., 55
F.3d 1177, 1186 (6th Cir. 1995). If the First Amendment
violation was a substantial or motivating factor in
Defendants’ action against Plaintiff, Defendants may present
evidence that they would have terminated Plaintiff in the
absence of his protected conduct, which is a question of fact
for the jury to decide. See Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977).
In this case, the district court found that Plaintiff’s speech
on Defendants’ noncompliance with its affirmative action
program to be a matter of public concern. However, the court
found that the University’s interests maintaining its hiring
process without disruption outweighed Plaintiff’s right to free
speech. Although we agree with the district court that
Plaintiff’s speech regarding the University’s failure to comply
with the A-900 process was a matter of public concern, we
disagree that the University’s purported interests outweigh
Plaintiff’s right to free speech.
In Meyers v. City of Cincinnati, this Court held that “[j]ust
as an opinion concerning the general policy of affirmative
action would be a matter of public concern, so too is speech
concerning methods of implementing affirmative action.”
934 F.2d 726, 730 (6th Cir. 1991), modified on other grounds,
979 F.2d 1154 (6th Cir. 1992). The plaintiff in Meyers held
the title of “assistant fire chief in charge of personnel,” and he
allegedly made statements which were “in direct

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34 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
Considering this evidence in the light most favorable to
Plaintiff, a reasonable jury could find that Plaintiff was
retaliated against for filing his complaint and charge with the
EEOC.
As with Plaintiff’s claim brought under the opposition
clause, Plaintiff has created an issue of fact for the jury as to
whether Defendants’ proffered reasons for Plaintiff’s
discharge were merely pretextual by suggesting that
Defendants’ justifications possibly have no basis in fact or are
insufficient to explain his discharge, and are not the true
reasons for Plaintiff’s termination. We therefore reverse the
district court’s grant of summary judgment to the University
and Dr. Steger in his official capacity on Plaintiff’s claim
brought under the participation clause of Title VII.
IV. SECTION 1983 CLAIM FOR VIOLATION OF
FIRST AMENDMENT RIGHTS
In Count VI of his amended complaint, Plaintiff brought a
claim under 42 U.S.C. § 1983, alleging that Defendants
retaliated against him for voicing his concerns about
Defendant’s failure to properly implement and comply with
the A-900 process -- Defendant’s affirmative action program
-- in violation of Plaintiff’s First Amendment right to free
speech.
As a public employee, to establish a § 1983 claim that
Defendants denied Plaintiff his right to free speech under the
First Amendment, Plaintiff had to prove that 1) the action was
taken against him for speech that was directed toward an issue
of public concern, and that 2) his interest in speaking as he
did outweighed Defendants’ interest in regulating his speech.
See Connick v. Myers, 461 U.S. 138, 147 (1983); Pickering v.
Board of Educ., 391 U.S. 563, 568 (1968).The initial inquiry
into determining whether a public employee’s speech is a
matter of public concern is a question of law for the court to
decide. Rankin v. McPherson, 483 U.S. 378, 386 n.9 (1987).
Absent unusual circumstances, a public employee’s speech
dealing with “matters only of personal interest” is not
afforded constitutional protection. See Connick, 461 U.S. at
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 11
2We note that the Ohio Supreme Court has recently indicated “that
for purposes of R. C. Chapter 4112, a supervisor/manager may be held
jointly and/or severally liable with her/his employer for discriminatory
conduct of the supervisor/manager in violation of R. C. 4112.” See
Genaro v. Central Transport, Inc., 703 N.E.2d 782, 787-88 (Ohio 1999).
Therefore, upon remand, Plaintiff’s claim of race discrimination and
retaliation brought against Dr. Steger individually under Ohio Rev. Code
§ 4112.99 may go forward. Because the Ohio court did not establish that
a non-supervisor may be individually liable under Chapter 4112, the same
does not hold true for Plaintiff’s Chapter 4112 claim brought against Dr.
DISCUSSION
I. ELEVENTH AMENDMENT IMMUNITY DEFENSE
& BARRED CLAIMS
We first address Defendants’ Eleventh Amendment
immunity defense because this defense raises a question of
federal jurisdiction. See Wilson-Jones v. Caviness, 99 F.3d
203, 206 (6th Cir. 1996) (“As an Article III restriction, state
immunity is jurisdictional in the same sense as the complete
diversity requirement, . . . or the well-pleaded complaint
rule.”) (citations omitted). Regarding Plaintiff’s claims
brought against Defendants pursuant to 42 U.S.C. § 1981 and
§ 1983, the University, as an arm of the State, is immune from
suit under the Eleventh Amendment because it is well-settled
that a plaintiff is precluded from directly suing a State in
federal court on these claims. See Hafford v. Seidner, 183
F.3d 506, 512 (6th Cir. 1999) (recognizing that claims against
a State under § 1981 are barred by the Eleventh Amendment);
see also Quern v. Jordan, 440 U.S. 332, 350 (1979) (holding
that § 1983 does not override a State’s Eleventh Amendment
immunity). However, Plaintiff’s § 1981 and § 1983 claims
against Dr. Steger and Dr. Harrison in their individual
capacities are not barred by the Eleventh Amendment.
Plaintiff’s claims brought against Dr. Steger and Dr.
Harrison in their individual capacities under Title VII cannot
go forward, however, because such claims can only proceed
against individuals who otherwise qualify as employers,
which Plaintiff does not allege.2 See Wathen v. General

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12 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
Harrison individually. See Summerville v. Ross/Abbott Labs., No. 98-
3517, 1999 WL 623786, at **4 (6th Cir. Aug. 10, 1999). Because
Plaintiff did not sue Dr. Harrison in his official capacity, Dr. Harrison is
relieved of liability under Title VII and Ohio Rev. Code § 4112.
3Plaintiff sued Dr. Steger in his individual capacity with respect to
damages, and in his official capacity with respect to Plaintiff’s claim for
equitable injunctive relief. However, because Plaintiff now has a new job
with similar pay and benefits, the equitable relief may no longer remain
at issue, and Plaintiff now seeks money damages. Furthermore, Dr.
Steger claims that he has no authority to grant Plaintiff equitable relief
and that he should be dismissed from suit. We leave these issues for the
district court to resolve on remand.
4Our holdings as to Plaintiff’s claims brought under Title VII apply
with equal force to his claims brought under Ohio Rev. Code § 4112. See
Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm., 575 N.E.2d
1164,1167 (Ohio 1991) (“[W]e have determined that federal case law
interpreting Title VII . . . is generally applicable to cases involving alleged
violations of R. C. Chapter 4112.”); see also supra note 2.
Electric Co., 115 F.3d 400, 405 (6th Cir. 1997) (“[A]n
individual employee/supervisor who does not otherwise
qualify as an ‘employer,’ may not be held personally liable
under Title VII.”); see also Morris v. Oldham County Fiscal
Court, 201 F.3d 784, 788 n.1 (6th Cir. 2000) (recognizing
Wathen’s holding). Plaintiff’s Title VII claims are
permissible against the University in federal court
notwithstanding the Eleventh Amendment and against Dr.
Steger in his official capacity.3 See Alden v. Maine, 527 U.S.
706, 119 S. Ct. 2240, 2266-68 (1999); Fitzpatrick v. Bitzer,
427 U.S. 445, 456 (1976) (finding that Congress abrogated
the States’ sovereign immunity by enacting Title VII under
the Enforcement Clause, § 5, of the Fourteenth Amendment).
In summary, Plaintiff is allowed to proceed with his claims
brought under Title VII against the University and Dr. Steger
in his official capacity; and he is allowed to proceed with his
claims brought under § 1981 and § 1983 against Dr. Steger
and Dr. Harrison in their individual capacities.4 These claims
will be addressed in turn as follows.
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 33
discrimination action. See Avery Dennison Corp., 104 F.3d
at 861; Zanders v. National R.R. Passenger Corp., 898 F.2d
1127, 1135 (6th Cir. 1990). Although temporal proximity
alone does not support an inference of retaliatory
discrimination in the absence of other evidence, closeness in
time between the filing with the EEOC and the adverse
employment action is relevant and may evince the employer’s
intent. See Cooper v. City of North Olmstead, 795 F.2d 1265,
1272-73 (6th Cir. 1986) (“The mere fact that [the plaintiff]
was discharged four months after filing a discrimination claim
is insufficient to support an inference of retaliation.”). In
short, in order to meet the final prong of his prima facie case,
Plaintiff must “put forth some evidence to deduce a causal
connection between the retaliatory action and the protected
activity [which requires] the court to draw reasonable
inferences from that evidence, providing it is credible.” See
Avery Dennison Corp., 104 F.3d at 861. We believe that
Plaintiff has met his burden of showing a temporal proximity
between his filing of his EEOC complaint and his
termination, coupled with other evidence, sufficient to
establish causation.
For example, Plaintiff has shown that his first two
performance evaluations had been strong prior to his filing of
the EEOC charge. Plaintiff has also shown that the
University hospital resisted his efforts, particularly with
respect to the hiring of the SEO and the Vice-Chairman of the
Department of Surgery, and that he was excluded from a
retreat where many other human resource administrators met
to discuss the hospital merger. Furthermore, the same day
that Dr. Steger informed the Cabinet of Plaintiff’s filing of his
EEOC complaint and that they may have to defend against it,
Plaintiff requested a performance evaluation from Dr. Steger
and only in response to this request did Dr. Steger then
scrutinize Plaintiff’s performance and provide him with a
negative evaluation. On January 16, 1996, Plaintiff
responded to Dr. Steger’s evaluation by sending Dr. Steger an
evaluation accusing him of, among other things, retaliating
against Plaintiff for filing and EEOC claim. The next day, Dr.
Steger terminated Plaintiff from his duties at the University.

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32 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
advocacy right as an affirmative action representative and his
affiliation with PACRRHD. Thus, Plaintiff could have
reasonably believed that he was engaging in protected activity
when he filed his EEOC complaint. Our holding in this
regard represents the first in this Circuit dealing with general
advocacy rights under Title VII and § 1981 for a cabinet-level
affirmative action/human resource vice-president.
Accordingly, having established that Plaintiff was engaged
in a protected activity when he filed his complaint with the
EEOC, Plaintiff has satisfied the first step of the inquiry into
his prima facie case of retaliation. In light of the following
evidence, which we view in the light most favorable to
Plaintiff, we believe that he has met the next two parts of his
prima facie case. On December 5,1995, Plaintiff filed a
complaint with the EEOC, alleging discrimination on the
basis of race and advocacy of minority and women’s rights.
On December 20,1995, Dr. Steger announced to the Cabinet
that Plaintiff had filed the EEOC charge and the Defendants
would have to defend themselves against the charges. That
same day, Dr. Steger promised to deliver a letter to Plaintiff
that outlined his standing with the University. On January 9,
1996, Dr. Steger sent Plaintiff a memorandum that
enumerated several problems with Plaintiff’s performance;
then, on January 17, 1996, Plaintiff received his termination
notice. As such, in addition to establishing that he engaged in
a protected activity under Title VII by filing his EEOC
complaint, Plaintiff also established that his filing was made
known to the University by Dr. Steger’s announcement at the
Cabinet meeting, and that Plaintiff suffered an adverse
employment decision.
In order to meet the final step of his prima facie case,
Plaintiff must establish a causal link between his filing of the
EEOC claim and his termination. A causal link may be
shown through knowledge combined with closeness in time
that creates an inference of causation. In order make such a
showing, the plaintiff must produce sufficient evidence for a
reviewing court to infer that the employer would not have
taken the adverse action had the plaintiff not filed a
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 13
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo. See
Dinsmore Instrument Co. v. Bomardier, Inc., 199 F.3d 318,
320 (6th Cir. 1999). Summary judgment is appropriate where
there exists no genuine issue of material fact and the moving
party is entitled to summary judgment as matter of law. Fed.
R. Civ. P. 56(c). As the moving parties, Defendants in this
case bear the burden of showing the absence of a genuine
issue of material fact as to at least one essential element on
each of Plaintiff’s claims. See Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). Plaintiff, as the non-moving party,
must then present sufficient evidence from which a jury could
reasonably find for him. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). This test requires the Court to
determine “whether the evidence presents sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a mater of law.”
Id. at 251-52. In making this determination, we accept all of
Plaintiff’s evidence as true and draw reasonable inferences in
his favor. See National Enters., Inc. v. Smith, 114 F.3d 561,
563 (6th Cir. 1997).
III. SECTION 1981 AND TITLE VII CLAIMS
A. Section 1981 and Section 2000e-2: Race and
National Origin Discrimination
In Count I of his complaint, Plaintiff alleges that
Defendants discriminated against him on the basis of race and
national origin in violation of Title VII, 42 U.S.C. § 2000e-2.
Specifically, Plaintiff alleges that Defendants discriminated
against him because of his efforts to insure that the University
complied with its affirmative action policies, and because of
his advocacy on behalf of women and minorities. In Count
IV of his complaint, Plaintiff alleges that Defendants violated
his right to be free from discrimination and retaliation in the
making and enforcement of contracts on the basis of race, and
for his promotion of minorities and women, in violation of 42
U.S.C. § 1981.

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14 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
5The elements of prima facie case as well as the allocations of the
burden of proof are the same for employment claims stemming from Title
VII and § 1981. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502
(1993).
A plaintiff may establish a claim of discrimination either by
introducing direct evidence of discrimination, or by proving
circumstantial evidence which would support an inference of
discrimination. See Kline v. Tennessee Valley Auth., 128 F.3d
337, 348 (6th Cir. 1997). “The direct evidence and the
circumstantial evidence paths are mutually exclusive; a
plaintiff need only prove one or the other, not both.” Id.
Under the direct evidence approach, once the plaintiff
introduces evidence that the employer terminated him because
of his race or other protected status, the burden of persuasion
shifts to the employer to prove that it would have terminated
the plaintiff even had it not been motivated by discrimination.
See Manzur v. Diamond Shamrock Chemicals Co., 29 F.3d
1078, 1081 (6th Cir. 1994) (citing Price Waterhouse v.
Hopkins, 490 U.S. 228, 244-45 (1989)).
Under the circumstantial evidence approach, the familiar
McDonnell Douglas-Burdine triparte test is employed. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as
later clarified by, Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248 (1981). This paradigm requires the
plaintiff to establish a prima facie case of discrimination. See
McDonnell Douglas, 411 U.S. at 802. To establish a prima
facie case of discrimination, a plaintiff must show that 1) he
is a member of a protected class; 2) he was qualified for his
job and performed it satisfactorily; 3) despite his
qualifications and performance, he suffered an adverse
employment action; and 4) that he was replaced by a person
outside the protected class or was treated less favorably than
a similarly situated individual outside his protected class.5
See id.; Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.
1992). If the plaintiff is able to do so, a mandatory
presumption of discrimination is created and the burden shifts
to the defendant to “articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.” Id.
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 31
opposition clause, the district court found that Plaintiff did
not hold a good faith belief that he was engaging in protected
activity when he filed his EEOC complaint, and that
Plaintiff’s claim on this issue thus failed as a matter of law.
The district court reasoned that Plaintiff filed his claim with
the EEOC as a protective measure to insure the security of his
job – because he was aware that Dr. Steger was not happy
with the manner in which Plaintiff handled the 925
negotiations – and not because he reasonably believed that he
was being discriminated against. Once again, we disagree
with the district court.
In reaching its erroneous conclusion, the district court failed
to liberally construe Plaintiff’s participation clause claim and
instead improperly resolved it as an issue of fact; specifically,
the district court improperly determined Plaintiff’s motive and
good faith in filing the charge. The district court’s conclusion
is contrary to our decision in Booker:
The “exceptionally broad protections” of the
participation clause extends to persons who have
“participated in any manner” in Title VII proceedings.
Pettway v. American Cast Iron Pipe Co., 411 F.2d 998,
1006 (5th Cir. 1969). Protection is not lost if the
employee is wrong on the merits of the charge, Womack
v. Munson, 619 F.2d 1292, 1298 (8th Cir. 1980), cert.
denied, 450 U.S. 979, 101 S. Ct. 1513, 67 L. Ed. 2d 814
(1981), nor is protection lost if the contents of the charge
are malicious or defamatory as well as wrong. Pettway,
411 F.2d at 1007. Thus, once activity in question is
found to be within the scope of the participation clause,
the employee is generally protected from retaliation.
Booker, 879 F.2d at 1312.
Even if the district court had some basis for viewing
Plaintiff’s EEOC complaint as Plaintiff’s way of protecting
himself, this does not necessarily imply that Plaintiff did not
believe that he suffered retaliation for his advocacy prior to
the 925 negotiations. Plaintiff could have reasonably believed
that he had a viable discrimination claim on the basis of his

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30 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
opposition clause through his claims that he opposed
Defendant’s violations of Title VII, that Defendant knew of
Plaintiff’s opposition, and that Plaintiff’s opposition was
causally related to his termination. See Walborn v. Erie
County Care Facility, 150 F.3d 584, 588-89 (6th Cir. 1998).
To fully dispose of the remaining inquires under the
McDonnell Douglas framework, we must also determine
whether Defendants offered a legitimate, nondiscriminatory
reason for Plaintiff’s dismissal and whether Plaintiff can show
that the reasons were a mere pretext for retaliatory
discrimination. Defendants offered the reasons outlined in
Dr. Steger’s memorandum sent to Plaintiff on January 9,
1996, wherein Dr. Steger evaluated Plaintiff’s performance,
as a non-exhaustive list of reasons for Plaintiff’s termination;
however, Defendants contend that the primary reasons that
Plaintiff was terminated were his handling of the 925
negotiations and his overall poor administration of his
department. In response, Plaintiff offered deposition
testimony which countered all of Defendants’ alleged reasons
for Plaintiff’s discharge, as well as evidence that other
employees feared cooperating with the investigation into
Plaintiff’s termination because they anticipated reprisals.
After careful review of the record, we hold that Plaintiff has
created an issue of fact for the jury as to whether Defendants’
proffered reasons for Plaintiff’s discharge were merely
pretextual by suggesting that Defendants’ justifications
possibly have no basis in fact or are insufficient to explain his
discharge, and are not the true reasons for Plaintiff’s
termination. We therefore reverse the district court’s grant of
summary judgment to the University and Dr. Steger in his
official capacity on Plaintiff’s claim brought under the
opposition clause of Title VII.
2. The Participation Clause
To establish a claim of retaliation under the participation
clause, Plaintiff must make a prima facie case by showing
that Defendants discharged him because he filed a claim with
the EEOC. As with Plaintiff’s claim brought under the
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 15
If the defendant carries this burden, then the plaintiff must
prove that the proffered reason was actually a pretext to hide
unlawful discrimination. Id. The plaintiff may establish that
the proffered reason was a mere pretext by showing that 1) the
stated reasons had no basis in fact; 2) the stated reasons were
not the actual reasons; and 3) that the stated reasons were
insufficient to explain the defendant’s action. See Wheeler v.
McKinley Enters., 937 F.2d 1158, 1162 (6th Cir. 1991). “A
reason cannot be proved to be ‘a pretext for discrimination’
unless it is shown both that the reason was false, and that
discrimination was the real reason.” St. Mary’s Honor Center
v. Hicks, 509 U.S. 502, 515 (1993).
Here, the district court found that Plaintiff’s claim failed
under either the direct or circumstantial evidentiary pathways
because Plaintiff failed to show that he was a member of a
protected group. The district court held that Plaintiff’s claims
failed as a matter of law because Plaintiff “postur[ed] his
protected status, not as a member of a racial minority, but
rather as a person who advocates on behalf of women and
minorities.” The district court also held that Plaintiff’s claims
failed on these counts because as a high-level affirmative
action official whose job responsibilities include advocating
minority rights, Plaintiff did not engage in protected activity
when he engaged in such advocacy. In other words, the
district court held that Plaintiff’s claims fell prey to summary
judgment because Plaintiff could not claim protected status
under § 1981 or § 2000e-2(a) only for his advocacy of women
and minorities. We disagree. This holding is based on an
unmitigated assumption: that for a high-level affirmative
action official to have standing to sue under § 2002e-2(a) or
§ 1981, it is necessary that the affirmative action official be
black – or of some other recognized protected group – and
that he allege discrimination against himself because of his
membership in a recognized protected group. This
assumption is contrary to express Congressional intent behind
the enactment of Title VII and § 1981, as well as binding case
law.

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16 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
Section 2000e-2(a) of Title VII provides in relevant part as
follows:
It shall be an unlawful employment practice for an
employer –
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin
. . . .
42 U.S.C. § 2000e-2(a) (1994). Section 1981 provides in
pertinent part that all persons shall have the same right “to
make and enforce contracts,” which thereby “includes the
making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.” 42 U.S.C.
§ 1981 (1994).
It is an established principle that Congress’ primary concern
in enacting the prohibition against racial discrimination in
Title VII of the Civil Rights Act of 1964 was the plight of the
African American in our economic society. See United Steel
Workers of Am. v. Kaiser Aluminum & Chemical Co., 443
U.S. 193, 201 (1979) (citing 110 Cong. Rec. 6548 (1964)
(remarks of Sen. Humphrey) (stating that Title VII was
“triggered by a Nation’s concern over centuries of racial
injustice and intended to improve the lot of those who had
‘been excluded from the American dream for so long’”). It is
also well-established that affirmative action programs, which
were born out of Title VII legislation, are an accepted means
of correcting past and preventing future race discrimination in
the workforce both in the public and private sector. See id. at
204. Furthermore, the Supreme Court has long recognized
that § 1981, originally enacted as part of the Civil Rights Act
of 1866, was intended to uproot the institution of slavery and
to eradicate all of its badges, incidents, and vestiges. See
Jones v. Mayer, 392 U.S. 409, 422-37 (1968) (finding that
based upon the legislative history of the Civil Rights Act of
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 29
manner. Furthermore, in a letter dated September 21, 1995,
sent by Plaintiff to Dr. Steger regarding Defendant’s desire to
waive advertising for the Vice-Chairman position, Plaintiff
complained that “the apparent underutilization of minorities
and women at the University Hospital and Medical College
demonstrates the lack of commitment or intent to create an
equal playing field for qualified candidates, or the
development of a mentorship program which would support
a safe learning environment for non-whites.” Unlike Booker
v. Brown & Williamson Tobacco Co. Inc., where the plaintiff
was contesting a single decision made by his employer in a
letter which he sent to his employer’s human resource
department, Plaintiff in this case was opposing Defendant’s
discriminatory hiring conduct as a whole. See 879 F.2d at
1312-13 (recognizing that the lawfulness of the employment
practice must be broadly construed, so that the person
opposing an apparently discriminatory practice does not bear
the risk that practice is in fact lawful); see also supra note 7.
One example of Defendants’ discriminatory hiring practice
which Plaintiff opposed was Defendants’ decision not to
advertise for the Vice-Chairman position.
Accordingly, having established that he opposed conduct
which he reasonably believed to be unlawful, and that
Defendant was aware of Plaintiff’s opposition, Plaintiff also
provided evidence to show that his opposition was causally
related to his discharge. For example, Plaintiff’s complaints
led to a reply memoranda from Dr. Steger wherein he
criticized Plaintiff’s character and performance, and
approximately one month after Plaintiff filed his charge of
discrimination with the EEOC, Dr. Steger informed Plaintiff
that he was being immediately removed from his position at
the University. See, e.g., EEOC v. Avery Dennision Corp.,
104 F.3d 858, 861 (6th Cir. 1997); Moon v. Transport
Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987); see also
discussion infra Part III.B.2. discussing the causal connection
between Plaintiff’s filing of his EEOC complaint and his
termination in reference to his claim brought under the
participation clause. Thus, Plaintiff has demonstrated a prima
facie case of retaliatory discrimination under Title VII’s

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28 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
by anyone and it may be made to a co-worker, newspaper
reporter, or anyone else about alleged discrimination against
oneself or others; the alleged discriminatory acts need not be
actually illegal in order for the opposition clause to apply; and
the person claiming retaliation need not be the person
engaging in the opposing conduct. See EEOC Compliance
Manual (CCH) ¶ 8006; see also See Booker, 879 F.2d at
1312-13 (holding that “[a] person opposing an apparently
discriminatory practice does not bear the entire risk that it is
in fact lawful; he or she must only have a good faith belief
that the practice is unlawful”); Keys v. U.S. Welding,
Fabricating & Mfg., Inc., No. CV91-0113, 1992 WL 218302,
at *5 (N.D. Ohio Aug. 26, 1992) (noting that “[u]nder
§ 704(a) of Title VII, [the plaintiff] needed only a ‘good faith
belief’ that the company practice about which he was
complaining violated Title VII; it is irrelevant whether the
allegations are ultimately determined to violate Title VII”).
Therefore, it logically follows that the district court’s
conclusion, that as a high-level affirmative action official
Plaintiff could not claim protected status under the opposition
clause for his advocacy on behalf of women and minorities,
runs counter to the broad approach used when considering a
claim for retaliation under this clause, as well the spirit and
purpose behind Title VII as a broad remedial measure. By
extending the scope of Holden, the district court allows for an
employer to retaliate against the person best able to oppose
the employer’s discriminatory practices — the “high-level
affirmative action official” — without fear of reprisal under
Title VII. Indeed, the individual who has contracted to
advocate on behalf of women and minorities has not thereby
contracted to be retaliated against for his advocacy.
In addition, the actions taken by Plaintiff in response to
hiring decisions which he felt were discriminatory and not in
line with the A-900 process were sufficient to constitute
opposition under Title VII. For example, Plaintiff sent letters
to Dr. Steger voicing his objections to the hiring of Mr. Cohen
and the Vice-Chairman of the Department of Surgery on the
grounds that these individuals were hired in a discriminatory
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 17
1866, the broad language of the Act was not “a mere slip of
the legislative pen”).
Recently, in Tetro v. Popham, this Court recognized Title
VII’s broad reach, and held as a matter of first impression in
this Circuit that “Title VII [was designed] to protect
individuals who are the victims of discriminatory animus
towards third persons with whom the individuals associate.”
See 173 F.3d 988, 994 (6th Cir. 1999). Relying upon the
Eleventh Circuit’s decision in Par v. Woodmen of the World
Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986), where it
was held that a white individual had standing and had stated
a viable cause of action under Title VII for discrimination
based upon an interracial marriage, the Tetro court found that
a white employee had standing and had stated a viable cause
of action against his former employer under Title VII where
the white employee was discharged because his child was
biracial. See Tetro, 173 F.3d at 994. The Court reasoned that
“[a] white employee who is discharged because his child is
biracial is discriminated against on the basis of his race, even
though the root animus for the discrimination is a prejudice
against the biracial child.” Id. The Court based its reasoning
on Title VII’s broad remedial purpose and the fact that the
statute is worded such that it “simply prohibits discrimination
‘because of such individual’s race’[;] [t]here is no mention of
the words ‘directly’ or ‘indirectly’ in the statute.” Id. at 995.
Thus, the Court went on to hold that Title VII protects
individuals who are the victims of invidious discrimination
towards third persons with whom the individual associates.
Id. at 994. Simply put, this Court has now spoken that in
order to state a cognizable claim under Title VII, the plaintiff
himself need not be a member of a recognized protected class;
he need only allege that he was discriminated on the basis of
his association with a member of a recognized protected class.
See id.; see also Troy v. Suburban Management Corp., No.
89-1282, 1990 WL 97490, at **5 (6th Cir. July 13, 1990);
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d
581, 589 (5th Cir. 1998) (finding as a matter of first
impression that Title VII proscribes discrimination in
employment against a woman for her relationship with a

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18 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
black man), vacated and reinstated in part en banc, 182 F.3d
333 (5th Cir. 1999).
Similarly, in Winston v. Lear Siegler, Inc., 558 F.2d 1266,
1270 (6th Cir. 1997), this Court addressed as a matter of first
impression, “the issue of whether or not the white plaintiff in
this action has standing to sue his former employer under
§ 1981 for discharging him in alleged retaliation for plaintiff’s
protesting the alleged discriminatory firing of a black co-
worker . . . .” In holding that the white plaintiff did in fact
have standing to sue under such circumstances, the Court
noted that although the white plaintiff “was not fired because
of his race, it was a racial situation in which he became
involved that resulted in his discharge from his employment,
id. at 1268, and that Congress’ intent behind the enactment of
§ 1981 – to eradicate the badges and incidents of slavery –
were best served by such a holding. Id. at 1270; see Alizadeh
v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986)
(Ҥ 1981 provides a cause of action to a white spouse who
alleges that he was discriminated against in employment
because of his marriage to a nonwhite.”)
Therefore, based upon this well-settled state of the law, it
is clear that Plaintiff need not have alleged discrimination
based upon his race as an African American in order to satisfy
the protected status requirement of his claims. Indeed, in
light of this Court’s holding in Tetro and Winston, the fact
that Plaintiff has not alleged discrimination because of his
race is of no moment inasmuch as it was a racial situation in
which Plaintiff became involved – Plaintiff’s advocacy on
behalf of women and minorities in relation to Defendant’s
alleged discriminatory hiring practices – that resulted in
Plaintiff’s discharge from employment. See Tetro, 173 F.3d
at 994-95; Winston, 558 F.2d at 1268; see also Parr, 791 F.2d
at 892 (holding that “[w]here a plaintiff claims discrimination
[in a Title VII action] based upon an interracial marriage or
association, he alleges, by definition, that he has been
discriminated against because of his race”). Although
obviously not anticipated by the district court’s flawed
reasoning, it is clear that a Caucasian high-level affirmative
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 27
8Pursuant to the Supreme Court’s directive, the EEOC’s
interpretation of Title VII is to be given “great deference” by the courts.
See Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971); see also Tetro,
173 F.3d at 994 (relying upon the EEOC’s interpretation of Title VII in
support of the Court’s holding); Ladd v. Sertoma Handicapped
Opportunity Program, Inc., 917 F. Supp. 766, 767 (N.D. Okla. 1995)
(finding that “[a]lthough not binding on this Court, the EEOC’s position
on a subject squarely within its field of expertise is significant”).
against employer retaliation for opposing any practice that the
employee reasonably believes to be a violation of Title VII.
The Equal Employment Opportunity Commission (“EEOC”)
has identified a number of examples of “opposing” conduct
which is protected by Title VII, including complaining to
anyone (management, unions, other employees, or
newspapers) about allegedly unlawful practices; refusing to
obey an order because the worker thinks it is unlawful under
Title VII; and opposing unlawful acts by persons other than
the employer — e.g., former employers, union, and co-
workers. EEOC Compliance Manual, (CCH) ¶ 8006.8 The
EEOC has qualified the scope of the opposition clause by
noting that the manner of opposition must be reasonable, and
that the opposition be based on “a reasonable and good faith
belief that the opposed practices were unlawful.” Id. In other
words, a violation of Title VII’s retaliation provision can be
found whether or not the challenged practice ultimately is
found to be unlawful. Id. Moreover, the person claiming
retaliation need not be the person who engaged in the
opposition, such that “Title VII . . . prohibit[s] retaliation
against someone so closely related to or associated with the
person exercising his or her statutory rights that it would
discourage that person from pursuing those rights.” Id.
In short, the only qualification that is placed upon an
employee’s invocation of protection from retaliation under
Title VII’s opposition clause is that the manner of his
opposition must be reasonable. Of critical import here is the
fact that there is no qualification on who the individual doing
the complaining may be or on the party to whom the
complaint is made known — i.e., the complaint may be made

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26 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
engaged in protected activity in reference to either claim. We
disagree, and will address each of Plaintiff’s claims in turn.
1. The Opposition Clause
In conjunction with his allegations that his termination was
discrimination for his advocacy on behalf of women and
minorities, Plaintiff similarly contends that the University
retaliated against him for his advocacy efforts in opposition
to Defendants’ alleged unlawful employment practices. The
district court found that Plaintiff’s claim failed at the
inception because, as an affirmative action official, Plaintiff
could not have reasonably believed that the conduct he was
opposing was protected activity. Relying upon Holden v.
Owens-Illinois, 793 F.2d 745, 748-49 (6th Cir. 1986), the
district court reasoned that because attempts to implement an
affirmative action program that complies with Executive
Order 11246 are not protected by Title VII, and because
Plaintiff is presumed to know the state of the law, it follows
that Plaintiff could not have reasonably believed that he was
opposing conduct that is protected under Title VII, and that
his claim brought under this clause therefore failed. We find
the district court’s application and extension of Holden to the
facts of this case contrary to Title VII’s intent.
As accurately argued by Plaintiff, the scope of Holden
extends only to an employee who protests the implementation
of the affirmative action program; because Plaintiff protested
discrimination that occurred in the hiring process, which was
contrary to law as well as the affirmative action program, his
case falls beyond Holden’s reach. To hold otherwise would
improperly expand the scope of Holden to include not only
the employee who protests an employer’s failure to implement
an affirmative action program under Title VII, but also the
employee who opposes discrimination that occurs in the
hiring process the likes of which the affirmative action
program was designed to correct and prevent.
Furthermore, the fact that Plaintiff may have had a
contractual duty to voice such concerns is of no consequence
to his claim. Under Title VII, an employee is protected
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 19
action official could bring a claim under § 1981 and § 2000e-
2(a) for discrimination based upon his advocacy on behalf of
minorities because the discrimination would be “because of
such individual’s race,” where the race of the minorities for
which he was advocating would be “imputed” if you will to
the Caucasian high-level affirmative action official. See
Tetro, 173 F.3d at 995.
Furthermore, Plaintiff’s efforts to advocate for the A-900
process in the face of Defendants’ alleged discriminatory
practice is clearly the type of conduct protected by § 1981 and
Title VII so as to provide Plaintiff standing. For example, in
Sullivan v. Little Hunting Park, Inc., a case “which involve[d]
an alleged discrimination against a Negro family in the use of
certain community facilities,” the Supreme Court found that
a Caucasian homeowner had standing to sue under 42 U.S.C.
§ 1982 when he was expelled from a corporation organized to
operate a community park facility for his “advocacy” on
behalf of allowing an African-American male and his family
to participate in the park facilities. See 396 U.S. 229, 231-37
(1969). Specifically, in Sullivan, the Court was faced with the
following facts:
Little Hunting Park, Inc., is a Virginia nonstock
corporation organized to operate a community park and
playground facilities for the benefit of residents in an
area of Fairfax County, Virginia. A membership share
entitles all persons in the immediate family of the
shareholder to use the corporation’s recreation facilities.
Under the bylaws a person owning a membership share
is entitled when he rents his home to assign the share to
his tenant, subject to approval of the board of directors.
Paul E. Sullivan and his family owned a house in this
area and lived in it. Later he bought another house in the
area and leased the first one to T. R. Freeman, Jr., an
employee of the U.S. Department of Agriculture; and
assigned his membership to Freeman. The board refused
to approve the assignment because Freeman was a Negro.
Sullivan protested that action and was notified that he
would be expelled from the corporation by the board. A

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20 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
hearing was accorded and he was expelled, the board
tendering him cash for his two shares.
Id. at 234-35. When Sullivan and Freeman sued Little Park
Hunting, Inc. under § 1981 and § 1982, the trial court denied
relief to each petitioner. Id.
In reversing the trial court’s decision, the Supreme Court
held as to Freeman that he had stated a cause of action under
§ 1982 inasmuch as he had paid a monthly rental for
Sullivan’s assignment of the membership share in Little
Hunting Park, and therefore the transaction in which Freeman
engaged was clearly a “lease” transaction protected by § 1982.
Id. at 236-37. The Supreme Court reasoned as follows:
The right to ‘lease’ is protected by § 1982 against the
actions of third parties, as well as against the actions of
the immediate lessor. Respondents’ actions in refusing
to approve the assignment of the membership share in
this case was clearly an interference with Freeman’s right
to ‘lease.’ A narrow construction of the language of
§ 1982 would be quite inconsistent with the broad and
sweeping nature of the protection meant to be afforded
by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from
which § 1982 was derived.
Id. at 237 (emphasis added) (citing Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 422-37 (1968)). The Supreme Court then
found as follows regarding Sullivan’s standing to bring his
claims:
We turn to Sullivan’s expulsion for the advocacy of
Freeman’s cause. If that sanction, backed by a state
court judgment, can be imposed, then Sullivan is
punished for trying to vindicate the rights of minorities
protected by § 1982. Such a sanction would give
impetus to the perpetuation of racial restrictions on
property. That is why we said in Barrows v. Jackson,
346 U.S. 249, 259 [(1953)], that the white owner is at
times ‘the only effective adversary’ of the unlawful
restrictive covenant. Under the terms of our decision in
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 25
42 U.S.C. § 2000e-3(a) (1994). Thus, this section prohibits
an employer from retaliating against an employee who has
“opposed” any practice by the employer made unlawful under
Title VII; and prohibits an employer from retaliating against
an employee who has “participated” in any manner in an
investigation under Title VII. See Booker v. Brown &
Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir.
1989); see also Morris v. Oldham County Fiscal Court, 201
F.3d 784, 791-92 (6th Cir. 2000). In Count V of his
complaint, Plaintiff claims that Defendants discriminated
against him because he “opposed” the hiring of individuals in
conflict with the A-900 process; and that Defendants
terminated him in retaliation for Plaintiff’s “participation” in
filing an EEOC claim.
To establish a claim under either clause, Plaintiff must meet
the test of a slightly modified McDonnell Douglas framework
by showing that: 1) he engaged in activity protected by Title
VII; 2) this exercise of protected rights was known to
Defendants; 3) Defendants thereafter took an adverse
employment action against Plaintiff, or Plaintiff was
subjected to severe or pervasive retaliatory harassment by a
supervisor; and 4) there was a causal connection between the
protected activity and the adverse employment action or
harassment. See Morris, 201 F.3d at 792 (citing Canitia v.
Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.
1990)). If Plaintiff establishes a prima facie case under either
clause, then the burden shifts to Defendants to articulate a
legitimate, nondiscriminatory reason for Plaintiff’s discharge.
Id. (citing McDonnell Douglas, 411 U.S. at 802). Plaintiff
must then demonstrate that the proffered reason was not the
true reason for the employment action – i.e., that the reason
was a mere pretext for discrimination. Id. (citing Burdine,
450 U.S. at 256).
In this case, the district court found that Plaintiff’s claims
brought under both the opposition clause and the participation
clause of § 2000e-3(a) failed as a matter of law because
Plaintiff could not have held a good faith belief that he was

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24 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
and equality in employment. The approach that is in line with
§ 1981 and Title VII’s broad remedial purpose, as well as the
case law in support thereof, is to allow the jury to decide
whether the high-level affirmative action official was
discriminated against for his “advocacy” on behalf of women
and minorities, irrespective of whether the advocacy was part
of the official’s contractual duties. That is not to say that
every job-related action undertaken by a high-level
affirmative action official should be considered protected
conduct. However, when the action undertaken by the official
is the advocacy of hiring practices that do not discriminate on
the basis of race, sex, or ethnicity — such as Plaintiff’s
advocating a nondiscriminatory hiring practice in line with the
A-900 process — the advocacy can indeed be considered
protected conduct under Title VII and § 1981, and a jury
should decide whether a defendant employer has
discriminated or retaliated against the high-level affirmative
action official for this advocacy.
In every civil rights action it is the responsibility of the jury
determine whether the defendant’s actions were invidious,
pretextual, or improperly motivated. This case is no different.
We therefore reverse the district court’s grant of summary
judgment to the University and Dr. Steger in his official
capacity on Plaintiff’s claims brought under § 2000e-2, and to
Dr. Steger and Dr. Harrison individually on Plaintiff’s claims
brought under § 1981.
B. Section 2000e-3(a): Retaliation Discrimination
under the Opposition & Participation Clauses
Section § 2000e-3(a) provides in relevant part as follows
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
. . . because [the employee] has opposed any practice
made an unlawful employment practice by this
subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
subchapter.
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 21
6In light of Sullivan, and in light of Winston’s holding that Sullivan
is applicable to § 1981 claims, the dissent’s contention that the majority
cannot point to any case where general advocacy of minority rights has
been found to violate either § 1981 or Title VII, is unfounded.
Furthermore, as stated throughout this opinion, simply because it was
Plaintiff’s job to insure that Defendants did not engage in discriminatory
hiring practices the likes of which Defendants had previously been found
to employ, does not thereby immunize Defendants from retaliating against
Plaintiff for doing his job. Obviously, the dissent’s question as to how
the situation would differ if the advocacy was for a plan that failed to
meet the standard of Croson v. City of Richmond, 478 U.S. 1016 (1986)
is rhetorical. If an employee was retaliated against by his employer for
Barrows, there can be no question but that Sullivan has
standing to maintain this action.
Sullivan, 396 U.S. at 237 (emphasis added).
Likewise, in the case at hand, Plaintiff alleged in his
complaint that he was sanctioned or punished when, among
other things, University officials “excluded him from
decisions and policies affecting the West campus and the
Alliance . . . because of Plaintiff’s support of affirmative-
action policies and minority hires[]” protected under Title VII
and § 1981. See Plaintiff’s Amended Complaint, ¶ 21; J.A.
at 100027. Plaintiff also alleged that he was sanctioned or
punished for his advocacy on behalf of female and minority
hires through his termination, or “expulsion” if you will, from
employment by the University. See id., ¶ 28; J.A. at 100029.
As in Sullivan, if these “sanctions” were allowed to go
unredressed, it would give impetus to the perpetuation of
racial and minority discrimination in hiring which Title VII of
the Civil Rights Act of 1964, affirmative action programs, and
§ 1981, were designed to prevent. See Kaiser Aluminum &
Chemical Co., 443 U.S. at 201; Sullivan, 396 U.S. at 237;
Winston, 558 F.2d at 1270 (finding that the Supreme Court’s
holding in Sullivan, while directed to § 1982, was applicable
to § 1981 inasmuch as both statutes were originally enacted
as part of the Civil Rights Act of 1866 and were designed
with the same purpose in mind: “to uproot the institution of
slavery”)6.

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22 Johnson v. Univ. of Cincinnati, et al. No. 98-3016
speaking out on behalf of minorities, whether or not a plan met the
standard of Croson, the employee may have a viable claim – irrespective
of the employee’s race or ethnicity -- under § 1981 or Title VII. See
Sullivan v. Little House Park, Inc., 396 U.S. 229, 231-37 (1969); Tetro v.
Popham, 173 F.2d 988, 994 (6th Cir. 1999); Winston v. Lear Siegler, Inc.,
558 F.2d 1266, 1270 (6th Cir. 1997). Indeed, the Supreme Court found
Sullivan’s “advocacy . . . for trying to vindicate the rights of minorities”
to be protected conduct such that Sullivan had standing to sue. See
Sullivan, 396 U.S. at 237.
Contrary to the district court’s assertion, Plaintiff’s status
as a high-level affirmative action official does not change the
fact that his advocacy on behalf of women and minorities is
protected activity or that he is a member of a protected class.
Simply because the employer has placed an individual in the
position of a high-level affirmative action officer and
contracted with the individual to advocate on behalf of
women and minorities to insure equality in employment
within the institution, does not thereby immunize the
employer from being held liable for illegally discriminating
against that individual for such advocacy. To hold otherwise
would allow an institution to contract with an individual for
the position of a “high level affirmative action official;” put
into place an allegedly nondiscriminatory hiring practice such
as the A-900 process; circumvent the hiring process against
the express advocacy and advice of the affirmative action
official; and discriminate or retaliate against the affirmative
action official for his advocacy, thus sending a message to the
official that he either remain silent or be “punished.”
Said differently, an employer inclined to engage in
invidious discrimination in the workplace could hire an
affirmative action official in order to convey the false
impression that the employer is interested in eliminating
illegal discrimination from the workplace, and proceed to
retaliate against the official secure in the knowledge that no
legal claim could be lodged against the employer for its
actions. Thus, to hold that a high-level affirmative action
official cannot bring a Title VII claim for discrimination
based upon his or her advocacy of women and minorities
would be to invite stratagems designed to circumvent, and
No. 98-3016 Johnson v. Univ. of Cincinnati, et al. 23
7An example of such direct evidence offered by Plaintiff is taken
from Plaintiff’s deposition testimony made in response to the question of
whether Dr. Steger, in Plaintiff’s view, expressed race consciousness in
making hiring decisions:
During the search for the provost at the University, I made
a recommendation to Dr. Steger that proactive consideration be
given to Dean Castenell; that based upon the candidates being
brought into the University from outside that I felt Dean
Castenell had more experience and would be more effective.
Dr. Steger’s response was, “We already have two black vice
presidents. I can’t bring in a black provost.” My response was,
“Dr. Steger, you’re the President of the University, and it’s my
expectation that you demonstrate the issues and concerns in
staffing is that we get the best person available, not the fact that
you’ve got three senior black officers.” His response was,
“Faculty would kill me if I would bring in a black provost,
particularly with us already having two black vice presidents at
the University.”
That was a very disturbing response, to me, for a president
to be making to the Vice President of Human Resources, when
I had been charged always to ensure that we hire the best person
possible and that we always identify a diverse pool of candidates
and that we give full consideration to them based upon
experience, their expertise, and whether they would be able to do
the job or not.
(J.A. at 100737-38.)
indeed, to violate law which was designed to serve “as a spur
or catalyst to cause ‘employers and unions to self-examine
and to self-evaluate their employment practices and to
endeavor to eliminate, so far as possible, the last vestiges of
an unfortunate and ignominious page in this country’s history
. . . .’” Kaiser Aluminum & Chem. Corp., 443 U.S. at 204
(quoting Albemarle Paper Co. v. Moody, 442 U.S. 405, 418
(1975)).
Therefore, having found that Plaintiff was indeed a member
of protected class, and that he proffered direct evidence that
he was discriminated against because of his advocacy, we
believe that a question of fact exists for the jury to decide
whether Defendants terminated Plaintiff out of a
discriminatory animus.7 The district court’s approach to this
matter turns back the hands of time on the issue of civil rights

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