Ginsberg v Bd. of Governors of the Univ. of N.C
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NO. COA11-506 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 Terri Ginsberg, Plaintiff, v. Orange County No. 09 CVS 1789 Board of Governors of the University of North Carolina, Defendant. Appeal by plaintiff from order entered 4 November 2010 by Judge Shannon R. Joseph in Orange County Superior Court. Heard in the Court of Appeals 26 October 2011. Rima N. Kapitan plaintiff. and Marty Rosenbluth, Attorney General Roy Cooper, by Special General Gary R. Govert, for defendant. attorneys Deputy for Attorney ELMORE, Judge. Terri Ginsberg (plaintiff) appeals an order entered 4 November 2010 granting summary judgment in favor of the Board of Governors of the University of North Carolina (defendant). We affirm. In Studies position December Department as a 2006, of plaintiff North Teaching interviewed Carolina Assistant State Professor with the University (TAP). Film for The a TAP position was for the term of one year, with the possibility of -2renewal. During the interview, plaintiff was informed that the department Assistant would later Professor semester of 2008. in be seeking film to studies, hire to a begin tenure-track in the fall Plaintiff was then offered the TAP position. On 16 August 2007, plaintiff began her TAP employment. Around this time, Dr. Akram Khater, Director of the Middle East Studies Program, encouraged plaintiff to apply for the tenure-track position of Assistant Professor in film studies. Later that fall, plaintiff was asked to be a member of a committee to select films to be shown at the university s annual Middle Eastern Ticket Plaintiff to Film Series. Jerusalem introduced was the On 24 shown film as by October part 2007, of welcoming the that the film series. audience on behalf of the Film Studies and Middle East Studies programs. Plaintiff concluded her introduction by stating that she was proud to be able to present the film to the audience, because the audience s Palestinian presence cultural showed support perspectives, promote Palestinian liberation. for especially the airing those of which Other members of the committee felt as though plaintiff s statement conveyed the message to the audience that plaintiff believed that the audience s presence was a sign of their support of the Palestinian side of the -3Israeli-Palestinian political conflict. Dr. Marsha Orgeron, director of the Film Studies Program, felt as though plaintiff s statements were alienating. plaintiff. to counterproductive and potentially quite On 9 November 2007, Orgeron and Khater met with During that meeting, Khater expressed his concerns plaintiff about her introductory statements. Khater explained that he was concerned about the effect her statements could have on the program and the purpose of the film series. Also around this time, Orgeron served as the chair of a search committee position. Devin for the tenure-track Assistant Professor The committee members were Orgeron, her husband Dr. Orgeron, Dr. Jon Thompson, and Dr. Barbara Bennett. Plaintiff was initially on the list of applicants who would be considered for an interview. Plaintiff remained on the first tier list through November 2007. However, plaintiff was then moved further down the list, and eventually she was not included on the list of candidates who were screened for interviews. Orgeron explained that plaintiff was not screened for an interview because 1) plaintiff s area of research and interest in middle eastern film was not consistent with the area of focus desired by the department for the position, 2) plaintiff s experience and the quantity of her publications exceeded the -4scope of what would normally be expected of a beginning assistant professor in the department, and 3) the committee was concerned about the quality of the press of one of plaintiff s monographs. Ultimately, ten applicants were interviewed for the position. From those ten applicants, two candidates were brought to the university for an on-campus interview, and one of the candidates was hired. On 8 October 2009, plaintiff filed suit against defendant alleging a violation of her rights to religious liberty, and equal protection. freedom the trial court entered motion for summary judgment. an speech, On 10 September 2010, defendant filed a motion for summary judgment. 2010, of order On 4 November granting defendant s Plaintiff now appeals. Plaintiff contends that the trial court erred in dismissing her speech defendant. claim by granting summary judgment in favor of We review a trial court s order granting or denying summary judgment de novo. Under a de novo review, th[is] court considers the matter anew and freely judgment for that of the lower tribunal. substitutes its own Craig v. New Hanover County Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (citations and quotations omitted). proper when the pleadings, Summary judgment is depositions, answers to -5interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. The trial court must consider the evidence in the light most favorable to the non-moving party. Crocker v. Roethling, 363 N.C. 140, 142, 675 S.E.2d 625, 628 (2009) (quotations and citations omitted). Plaintiff argues that there are questions of material fact regarding whether her constitutional right to freedom of speech was violated. review on We disagree. appeal is whether The core issue for this Court to there is any genuine issue of material fact that plaintiff s remarks were the cause of the university s decision to not hire plaintiff for the tenure-track position. In challenging an adverse employment decision for violation of constitutional rights, an employee establishes a prima facie case by showing that [the] protected activity was a substantial or motivating factor in the employer's decision. This prima facie showing shifts the burden to the employer to show, by a preponderance of the evidence, that the adverse decision would have been made in the absence of the protected activity. Lenzer v. Flaherty, 106 N.C. App. 496, 509, 418 S.E.2d 276, 284 (1992) (citations omitted). in a case such as this Although evidence of retaliation one may often be completely -6circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation. Id. at 510, 418 S.E.2d at 284 (citation omitted). Here, plaintiff argues that following her remarks, she had several negative interactions with other members of the faculty. Based on these interactions, plaintiff believes that she was not considered for the tenure-track position as a result of her remarks. However, plaintiff fails to establish any causal connection beyond mere speculation between these interactions and the decision of the university to not hire her for the tenure-track position. In fact, the record does not show that plaintiff s remarks were a decisive factor in the committee s decision. The committee articulated several specific reasons why plaintiff was not hired for the position, none of which concerned plaintiff s remarks. Those reasons established in sum 1) that plaintiff s expertise was in a different area than the department desired for the position and 2) that plaintiff was overqualified for the position. Also, plaintiff remained on the first tier list of applicants through November 2007, weeks after her remarks were made. Furthermore, assuming arguendo that plaintiff was able to establish a prima facie case, it is apparent from the record that defendant has met its burden by -7showing that the adverse decision would have been made in the absence of conducted the an protected extensive activity. and Here, thorough search candidate to fill the tenure-track position. the for university the best Over the course of several weeks, the university narrowed the field of applicants to ten individuals. campus interviews, The university then conducted ten offtwo on-campus interviews, and ultimately hired a candidate with different qualifications than plaintiff. In sum, we conclude that plaintiff has failed to establish beyond mere speculation that her statements were the motivating factor in the university s tenure-track position. decision to not hire her for a Accordingly, we affirm the decision of the trial court. Affirmed. Judges BRYANT and STEPHENS concur.
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