UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

R. VINCENT LEWIS,
Plaintiff-Appellant,

v.

AMHERST COUNTY SCHOOL BOARD;
ROBERT J. GRANT, Principal of Amherst
County High School, in his official
and individual capacities; VIRGINIA
FARMER,
Defendants-Appellees,

and
                                                             No. 97-2350

DAVID L. MOSELEY; JOHN A. MARKS,
JR.; WILLIAM E. DAWSON, III; LESLIE B.
IRVIN; CHARLES R. JOLLEY; POPIE
MARTIN; ROBERT L. PERRY, members of
the Amherst County School Board in
their official and individual capacities;
JOHN J. DANIELS, Amherst County
School Board Division Superintendent
in his official and individual capacities,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Jackson L. Kiser, Senior District Judge.
(CA-96-66-L)

Argued: May 5, 1998

Decided: June 5, 1998

Before HAMILTON and MOTZ, Circuit Judges, and BEEZER,
Senior Circuit Judge of the United States Court of Appeals
for the Ninth Circuit, sitting by designation.
Affirmed by unpublished opinion. Judge Hamilton wrote the opinion,
in which Judge Motz and Senior Judge Beezer joined.

_________________________________________________________________

COUNSEL

ARGUED: Sean Patrick McGinley, DITRAPANO & JACKSON,
Charleston, West Virginia, for Appellant. Dennis Patrick Lacy, Jr.,
HAZEL & THOMAS, P.C., Richmond, Virginia, for Appellees. ON
BRIEF: Rudolph L. DiTrapano, DITRAPANO & JACKSON,
Charleston, West Virginia, for Appellant. Brian R. Greene, HAZEL
& THOMAS, P.C., Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

Vincent Lewis appeals the district court's order granting summary
judgment to the Amherst County School Board (the Board), Amherst
County High School (ACHS) Principal Robert Grant, and ACHS
guidance counselor Virginia Farmer (collectively, the Defendants) as
to Lewis' claims against the Defendants arising out of the decision
not to renew Lewis' contract of employment as a guidance counselor
at ACHS for the 1996-97 school year. Specifically, Lewis alleges that
the Defendants' action in failing to renew his contract violated his
First Amendment right to free speech, his Fourteenth Amendment
rights to equal protection and procedural due process, and Title VI of
the Civil Rights Act of 1964 (Title VI), 42 U.S.C.§ 2000d. Finding
no error, we affirm.

I.

Lewis was hired on July 20, 1995 as a guidance counselor at
ACHS for the 1995-96 school year. Pursuant to a written contract, his

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employment was for one year and would have to be renewed by the
Board for his employment to continue beyond the 1995-96 school
year. Farmer was a guidance counselor at ACHS and director of the
ACHS Guidance Department. Although Farmer was the director of
the department, she did not have supervisory authority over Lewis
and did not evaluate his performance.

According to ACHS officials, Lewis began complaining about the
guidance department almost from the beginning of his employment.
Specifically, in October and November 1995, Lewis complained to
ACHS Principal Grant that the organization of the department was
poor and that Lewis was prohibited from doing what he was hired to
do. Similarly, Lewis complained to ACHS Assistant Principal Ernie
Guill that the guidance office was not well organized and that the
guidance counselors were incompetent.

In November 1995, Lewis' performance was evaluated by Guill
who gave Lewis a very positive evaluation. Also in November 1995,
Lewis complained that Farmer was opening his mail and that the stu-
dent records were in disorder. Guill investigated Lewis' allegation
that Farmer was opening his mail and concluded that the mail had
been addressed to the guidance office and that Farmer had not acted
improperly. With respect to the student records, Principal Grant stated
in his affidavit that the records were somewhat in disorder but that
this disorder resulted from several legitimate causes, including the
department's recent move to new offices, the decision to combine cer-
tain classes of files, and a shortage of filing cabinets that were on
order but had not arrived.

In December 1995, Lewis complained to Stephanie Dearing, Direc-
tor of Personnel for the school system, and Superintendent of Schools
John Daniels that certain students' files were missing. Although
Lewis acknowledged in his deposition that going directly to the super-
intendent is not the normal avenue for pursuing complaints, he stated
that he went to Dearing initially because she had hired him and he
considered her a good person. As a result of Lewis' complaint, Super-
intendent Daniels visited ACHS the next day to investigate Lewis'
allegations. Daniels spoke with both Grant and Guill who subse-
quently located the student records Lewis alleged were missing.

                    3
On January 5, 1996, Lewis met with the other members of the
guidance department, including Farmer, Barbara Wood, and Karen
Cecil. According to Lewis, at this meeting, Farmer instructed him that
"since this was [his] first year at [ACHS] and [he] had not partici-
pated in registration before, . . . [he] needed to be aware that [he] was
to discourage any black students from registering in advanced level
or college prep courses." (J.A. 59). In response, Lewis allegedly asked
Farmer to repeat her statement because he needed clarification, and
she again stated that he was "to discourage black students from enroll-
ing in advanced level and college prep courses" because there was
such a small number of black students in those classes, they were
made to feel uncomfortable. (J.A. 60-61). Lewis then told Farmer that
he considered the policy to be "immoral and illegal." (J.A. 64).

During the next few weeks, Lewis complained to three assistant
principals, including Guill, that Farmer had instructed him, at the Jan-
uary 5 meeting, to discourage black students from registering in
advanced level or college preparatory classes. According to their affi-
davits, Guill and Assistant Principal Bruce McDade did not believe
Lewis' allegation because Farmer had an excellent reputation as a
guidance counselor and was both decent and honest. Although
McDade stated that he spoke with Guill about Lewis' allegations, all
three assistant principals stated in their affidavits that they never told
Farmer, Grant, Daniels, or any member of the Board about Lewis'
allegations against Farmer.

In late January and early February 1996, Grant began to hear from
teachers and others in the Amherst community that Lewis was making
derogatory comments about Farmer and other guidance counselors.
Specifically, Grant stated in his affidavit that he received a phone call
from a parent and from a former employee about Lewis' comments.
Grant stated that none of the comments attributed to Lewis concerned
the alleged discriminatory policy about which Lewis had complained
to the assistant principals. Grant stated that also during this time, he
began to feel a "tense" atmosphere in the guidance office and believed
that teachers were questioning the guidance office's effectiveness as
a result of Lewis' conduct. As January 1996 progressed, Grant began
to consider recommending that Lewis' contract not be renewed
because he lacked enthusiasm for his job, and his complaints and con-
cerns about the guidance department were unfounded.

                     4
In mid-February 1996, Lewis complained to Grant about Farmer's
instruction that black students should be discouraged from registering
for advanced placement and college preparatory classes. Grant stated
in his affidavit that he did not believe Lewis because he had witnessed
Farmer's work with minority students and knew that she was a good
guidance counselor. However, Grant told Lewis that he would take
his concerns under advisement.1

On February 23, 1996, Grant met with Dearing and Assistant
Superintendent of Schools Lee Paris to discuss the probationary
employees on his staff and his recommendations. According to Grant,
Paris and Dearing informed him during that meeting that Lewis was
"saying negative and derogatory things" about the guidance depart-
ment and about Grant's job performance. (J.A. 173). Grant asserts
that Paris and Dearing stated that Lewis was making these comments
to teachers and to members of the community. Grant did not tell Paris
or Dearing about his conversation with Lewis a few days earlier dur-
ing which Lewis had accused Farmer of instructing him not to place
black students in higher level courses.

Toward the end of February 1996, Grant met with the guidance
department concerning student course selections and various prereq-
uisites that had been changed from the previous school year. Lewis
was present at the meeting, as were Farmer, Wood, Cecil, and Pat
Henley, an African-American guidance counselor. During the meet-
ing, Grant made the comment that he wanted to make sure that all of
the guidance counselors did everything they could to encourage all
the students, particularly minority students, to"take a challenging
program of studies." (J.A. 115). In particular, Grant commented on
music and other specific classes in which he wanted to try to increase
minority participation. At some point during the meeting, Lewis had
to leave to go to a child study meeting, and after he left, the other
counselors asked Grant if he could stay and talk. During that time,
_________________________________________________________________
1 We note that Farmer flatly denied Lewis' assertion that she instructed
him not to register black students for higher level courses. Wood and
Cecil, the other two guidance counselors present at the January 5 meet-
ing, both testified in their depositions that they did not recall any discus-
sions at the January 5 meeting concerning minority registration in
advanced level classes, as alleged by Lewis.

                    5
Grant mentioned to the other counselors that it had been reported to
him that the guidance counselors were discouraging black students
from taking academically challenging classes. According to Grant, he
did not identify Lewis as the person who had complained about the
policy. Although the other counselors did not ask specifically who
had made the accusation, they did express concern during this part of
the meeting about Lewis' behavior and general performance in and
around the guidance department.

Cecil corroborated Grant's account of the late February 1996 meet-
ing, stating in her deposition that after Lewis left the meeting, the dis-
cussion was about negative comments Lewis was making about the
guidance department. Farmer also testified in her deposition about
this meeting and stated that at no time during the meeting did Grant
discuss whether or not Lewis was going to be recommended for a
renewal of his contract. Farmer stated further that, also in late Febru-
ary, she complained to Grant that other faculty members had come to
the guidance department and informed the counselors that Lewis was
in the teachers' workroom talking about members of the guidance
department and about Grant in a derogatory fashion. According to
Farmer, she also complained to Grant that Lewis would stay away
from the guidance office for long periods of time and that other mem-
bers of the department did not know where he was.

On February 28, 1996, Grant informed Lewis and two other proba-
tionary employees that he would be recommending that their con-
tracts not be renewed for the 1996-97 school year. In Amherst
County, the principal of the school makes a recommendation to the
superintendent regarding whether to renew a probationary employee's
contract. The superintendent then makes his own recommendation to
the Board concerning the employee's contract, and the superintendent
has the authority to follow the principal's recommendation, to reject
it, or to amend it. The ultimate and final decision then rests with the
Board.

Regarding his decision not to recommend the renewal of Lewis'
contract, Grant stated in his affidavit that he was troubled by "Lewis'
complaints and attitude, and the fact that he was publicly bad-
mouthing the guidance office," which Grant stated was inexcusable.
(J.A. 173). Grant stated further that Lewis had demonstrated a "lack

                     6
of commitment" by taking his complaints directly to Daniels, rather
than through the normal channels at ACHS. Id. Grant stated that he
made his recommendations concerning the renewal of probationary
employees' contracts in order to enable all parties involved to have
adequate time to conform to the procedural rules for non-renewal set
forth in the Virginia Code. According to Grant, the fact that his rec-
ommendation not to renew Lewis' contract came close in time to his
meeting with Lewis in which Lewis alleged that Farmer had
instructed him not to place black students in higher level courses was
"merely consequential," and his decision would have been the same
had Lewis not told him about Farmer's alleged comments. (J.A. 174).

Based on Grant's recommendation, Daniels recommended to the
Board that Lewis' contract not be renewed. In mid-March 1996, the
Board requested a memorandum setting forth the chronology of
events leading up to Grant's decision to recommend that Lewis' con-
tract not be renewed. Daniels then asked Grant to author the memo-
randum, and Grant complied. The memorandum was subsequently
presented to the Board, and on April 18, 1996, the Board voted not
to renew Lewis' contract.

On December 23, 1996, Lewis filed this action in the United States
District Court for the Western District of Virginia against the Board,
each individual member of the Board, Superintendent Daniels, Princi-
pal Grant, and Farmer. In his complaint, Lewis alleged, pursuant to
42 U.S.C. § 1983, that the defendants had violated his First Amend-
ment right to free speech by retaliating against him for expressing his
opposition to the guidance department's alleged policy of discourag-
ing black students from enrolling in higher level academic courses.
Lewis also alleged that this same retaliatory conduct violated his
equal protection rights under the Fourteenth Amendment and Title VI.
With respect to his procedural due process claim, Lewis alleged that
the defendants failed to adhere to the procedures set forth in the Vir-
ginia Code for the non-renewal of his contract, see Va. Code § 22.1-
305 (Michie 1997), violating his procedural due process rights under
the Fourteenth Amendment. Finally, Lewis alleged that the defen-
dants conspired to violate his civil rights and those of black students
at ACHS in violation of 42 U.S.C. § 1985.

Lewis subsequently voluntarily dismissed all of his claims against
Daniels and the individual members of the Board and his § 1985

                    7
claim against the Defendants. On September 18, 1997, the district
court granted summary judgment to the Defendants on Lewis'
remaining claims, and Lewis noted a timely appeal.

II.

We review a district court's grant of summary judgment de novo.
See Karpel v. Inova Health Sys. Serv., 134 F.3d 1222, 1226 (4th Cir.
1998). In reviewing the district court's grant of summary judgment,
we must construe the facts in the light most favorable to the non-
moving party. See Smith v. Virginia Commonwealth Univ., 84 F.3d
672, 675 (4th Cir. 1996) (en banc).

A.

Lewis first argues that the district court erred in granting summary
judgment to the Defendants as to his claims under the First and Four-
teenth Amendments and Title VI. Specifically, in his complaint,
Lewis alleges that the Defendants' conduct in failing to renew his
contract in retaliation for his stated objection to the alleged racially
discriminatory policy violated his right to free speech under the First
Amendment, his right to equal protection under the Fourteenth
Amendment, and Title VI. As asserted, each of these claims depends
on the conclusion that Lewis' objection to the alleged discriminatory
policy motivated, at least in part, the decision not to renew Lewis'
contract for the 1996-97 school year.

In granting summary judgment to the Defendants, the district court
held that Lewis had failed to produce sufficient evidence from which
a reasonable jury could conclude that there was a causal relationship
between the decision not to renew Lewis' contract and his opposition
to the alleged discriminatory policy. After discussing each type of
evidence Lewis argued to be probative, the district court concluded
that the strongest evidence of a causal relationship between Lewis'
opposition to the alleged policy and the decision not to renew his con-
tract was the timing of the decision not to renew Lewis' contract,
which occurred shortly after he voiced his objection to the alleged
policy. The district court noted, however, that there was no evidence
that Lewis' objection to the alleged policy was ever mentioned at any
meeting where Lewis' non-renewal was discussed with Grant, nor

                    8
was there any evidence contradicting the Defendants' assertion that
the decision not to renew Lewis' contract was made at the time it was
made in order to comply with procedural deadlines imposed on school
officials. Additionally, the district court noted that all three of the pro-
bationary employees whose contracts were not being renewed, includ-
ing Lewis, were notified of Grant's decision on the same day. The
district court concluded that the close temporal relationship between
Lewis' objection to the alleged policy and the decision not to renew
his contract, standing alone, was insufficient evidence from which a
reasonable jury could conclude that Lewis' objection to the policy
was a motivating factor in the decision not to renew his contract.
Accordingly, the district court granted the Defendants' motion for
summary judgment as to Lewis' free speech, equal protection, and
Title VI claims.

We have carefully examined the record, the briefs, the arguments
of counsel, and the opinion of the district court. We agree with the
district court that Lewis failed to produce sufficient evidence from
which a reasonable jury could conclude that the decision not to renew
his contract was motivated, in part, by Lewis' objection to the ACHS
Guidance Department's alleged policy of discouraging black students
from enrolling in advanced level academic courses. Accordingly, we
affirm the grant of summary judgment to the Defendants on Lewis'
free speech, equal protection, and Title VI claims on the reasoning of
the district court.2 See Lewis v. Amherst County Sch. Bd., No. CV-96-
0066-L (W.D. Va. Sept. 18, 1997).

B.

Lewis next argues that the district court erred in granting the
_________________________________________________________________
2 In arguing that the district court properly granted their motion for
summary judgment as to Lewis' Title VI claim, the Defendants argue, in
part, that Title VI does not afford a private cause of action against an
individual defendant. Because we affirm the district court's grant of sum-
mary judgment on Lewis' Title VI claim on the basis that Lewis has not
produced sufficient evidence to support his assertion that his objection to
the alleged policy motivated the decision not to renew his contract, we
do not decide whether Title VI affords a cause of action against individ-
ual defendants.

                     9
Defendants' motion for summary judgment as to his claim that the
Defendants' failure to adhere to certain procedural requirements con-
tained in the Virginia Code violated his right to procedural due pro-
cess under the Fourteenth Amendment. In order to establish a
procedural due process violation, a plaintiff must show that he has a
constitutionally protected liberty or property interest and that he has
been deprived of that interest by some sort of state action. See
Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990). In Board of
Regents v. Roth, 408 U.S. 564 (1972), the Supreme Court made clear
that in order for a plaintiff to have a constitutionally protected prop-
erty interest in a particular benefit, he must "have a legitimate claim
of entitlement to it." Id. at 577; see also Mallette v. Arlington County
Employees' Supplemental Retirement Sys. II, 91 F.3d 630, 634-35
(4th Cir. 1996). In this case, Lewis argues that he has a protected
property interest in continued employment under Virginia law, even
as a probationary employee, unless and until he is given an explana-
tion of the reasons for his dismissal and the opportunity to discuss
those reasons with a school official. For support, Lewis relies on Vir-
ginia Code § 22.1-305, which provides that before a superintendent
recommends to the school board the non-renewal of a probationary
teacher's employment, the superintendent shall notify the teacher of
the proposed recommendation and shall orally provide specific rea-
sons for the recommendation, upon written request of the teacher. See
Va. Code § 22.1-305 (Michie 1997).

Contrary to Lewis' suggestion, this provision does not create a con-
stitutionally protected property interest in continued employment, but
rather, merely provides the procedures by which a probationary
employee's employment may be terminated. As set forth above, in
order for a constitutionally protected property interest to be created,
a plaintiff asserting a property interest in continued employment must
have a claim of entitlement to continued employment, not merely an
"expectancy." See Mallette, 91 F.3d at 635. This Virginia Code provi-
sion in no way legally entitles a probationary teacher to further
employment, nor does it provide that if its procedural requirements
are not followed, the employee may not be terminated. Rather, it
merely establishes the state's policy regarding the procedures through
which an employee's contract should not be renewed. See Jackson v.
Long, 102 F.3d 722, 729 (4th Cir. 1996) ("[P]rocedural rights in
themselves do not create substantive property rights protected by the

                    10
Fourteenth Amendment."). In sum, as a probationary employee,
Lewis cannot establish that he had a legitimate claim of entitlement
to the renewal of his contract and, therefore, he cannot establish that
he had a constitutionally protected property interest that was impaired
in violation of the Fourteenth Amendment.

III.

For the foregoing reasons, the judgment of the district court is
affirmed.

AFFIRMED

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