UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MELVIN J. RUSH,
Plaintiff-Appellant,

v.

ROWAN-SALISBURY BOARD OF
EDUCATION; JOSEPH MCCANN,
Individually, in his official capacity,
and as an agent of the board; N.
WINDSOR EAGLE, Individually, in his
                                                               No. 96-2462
official capacity, and as an agent of
the board; DANNY THOMAS,
Individually, in his official capacity,
and as an agent of the board;
DONALD MARTIN, Individually, in his
official capacity, and as an agent of
the board,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CA-95-405-4)

Submitted: October 7, 1997

Decided: October 23, 1997

Before HALL, HAMILTON, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

S. Luke Largess, FERGUSON, STEIN, WALLAS, ADKINS,
GRESHAM & SUMTER, P.A., Charlotte, North Carolina, for Appel-
lant. J. Reed Johnston, Jr., Denis E. Jacobson, TUGGLE, DUGGINS
& MESCHAN, P.A., Greensboro, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Melvin J. Rush appeals from the district court order granting sum-
mary judgment in favor of the Defendants in his employment action
alleging Title VII, 42 U.S.C. § 1983 (1994), and First Amendment
violations. We affirm.

Rush, an employee of the public school system, first argues on
appeal that the Defendants failed to select him for the position of
assistant principal of a middle school based on his race--African-
American. We find that even assuming that Rush has established a
prima facie case of race discrimination under Title VII, the Defen-
dants have come forth with a legitimate non-discriminatory reason for
their ultimate selection of another candidate. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973) (explaining burden-shifting
scheme). The superintendent was seeking an individual to handle
disciplinary matters within the school and the candidate selected had
past experience in this area, having served as a suspension coordina-
tor at another middle school and twenty-seven years in the Marine
Corps. Rush, however, as a guidance counselor had limited experi-
ence in the area of discipline and dealing with students on the middle
school level.

Rush attempts to demonstrate that this proffered explanation was
pretext for unlawful race discrimination by drawing attention to the

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fact that, with rare exception, the superintendent always recommends
and the school board always selects the principal's first choice for this
position, which in this case was Rush. On the only other occasion
where the principal's choice was not selected, Rush contends that the
decision was made to select an African-American applicant in order
to gain an African-American presence in the school as well as in the
administration. He notes that were he selected to fill the position of
assistant principal, it would be the first time that the school system
had two African-American administrators. We find these facts insuffi-
cient to create an inference of pretext and accordingly believe that the
district court properly granted summary judgment in favor of the
Defendants on this claim.

Rush next asserts that he received a substandard performance eval-
uation based upon certain statements he had made which reflected his
beliefs of a racial atmosphere within the school system. He contends
that the district court erred in not considering this claim. We note,
however, that Rush failed to present this claim to the district court.
Instead, he argued only that the poor performance evaluation was
based upon his race, an argument which he does not raise on appeal.
Nonetheless, we find that a First Amendment claim would not have
survived summary judgment. To establish a retaliatory claim under
the First Amendment, a public employee must meet a two-pronged
test. First, to merit First Amendment protection, the speech at issue
must relate to matters of public interest and the employee's interest
in free expression must outweigh the employer's interest in efficient
operation of the workplace. Second, the employee must demonstrate
that his protected speech was a substantial factor in the employer's
decision. See Hanton v. Gilbert, 36 F.3d 4, 6-7 (4th Cir. 1994).

Here, Rush's comments on racial relations may arguably relate to
an issue of public interest. However, many of these comments related
directly to other school and school board employees and as such were
likely to create a level of animosity which would hinder the efficient
operation of the school and board. Rush's pointed and personal com-
ments stand in stark contrast to those found by this Court to merit
First Amendment protection in Cromer v. Brown , 88 F.3d 1315 (4th
Cir. 1996), and we find that given the disruption such comments
would likely cause, Rush could not prevail under the First Amend-
ment's balancing test. See DiMeglio v. Haines , 45 F.3d 790, 806 (4th

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Cir. 1995) (stating that "only infrequently will it be `clearly estab-
lished' that a public employee's speech on a matter of public concern
is constitutionally protected, because the relevant inquiry requires a
`particularized balancing' that is subtle, difficult to apply, and not yet
well-defined").

Finally, Rush argued that he was impermissibly transferred to a dif-
ferent school in retaliation for his aforementioned statements and
EEOC charges in violation of Title VII and the First Amendment's
protection of free speech. The district court granted summary judg-
ment on this claim, noting that because he was transferred without a
loss of pay or benefits Rush did not suffer a "materially adverse
change in the conditions of his employment," and thus could not pre-
vail. On appeal, Rush concedes that in order to establish a claim under
Title VII he must show a materially adverse change in the conditions
of his employment. He asserts, however, that no such showing is nec-
essary to establish a First Amendment claim. In support of this posi-
tion, he cites to Rutan v. Republican Party of Illinois, 497 U.S. 62
(1990), for the holding that an employment action implicating the
First Amendment need not be materially adverse. We discern no such
holding in Rutan. Rather, the Court in Rutan simply rejected the
defendants' assertion that the particular employment decisions at
issue were not adverse. See id. at 73. We further note that a plethora
of First Amendment cases speak in terms of adverse employment
decisions, and accordingly we do not construe Rutan to eliminate that
requirement. See, e.g., United States v. National Treasury Employees
Union, 513 U.S. 454, 466 (1995). Even assuming, however, that such
a showing is not required, we would find, for the reasons stated
above, that Rush has not demonstrated that his speech was protected
under the First Amendment's balancing test.

Accordingly, we affirm the district court's grant of summary judg-
ment in favor of the Defendants. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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