UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD G. SCHLEY,
Plaintiff-Appellant,

v.
                                                                     No. 95-1932
COLLEGE OF CHARLESTON; MARTIN
PERLMUTTER,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
William M. Catoe, Jr., Magistrate Judge.
(CA-92-3350-2-22AK)

Argued: December 6, 1995

Decided: April 23, 1996

Before WIDENER and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Douglas A. Churdar, HUNTER & CHURDAR, P.A.,
Greenville, South Carolina, for Appellant. Katherine Dudley Helms,
HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, P.A.,
Columbia, South Carolina, for Appellees. ON BRIEF: Terry E.
Haskins, Greenville, South Carolina, for Appellant. Charles T.
Speth, II, HAYNSWORTH, BALDWIN, JOHNSON & GREAVES,
P.A., Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Alleging that he was not hired for three tenure-track positions
because of his religious beliefs, Donald Schley brought suit against
the College of Charleston and Dr. Martin Perlmutter in his official
capacity under 42 U.S.C. § 1983 and 42 U.S.C.§ 2000e et seq. (Title
VII). The district court dismissed the § 1983 claims prior to trial.
After a bench trial on the Title VII claims, the magistrate judge
entered judgment for the defendants. On appeal, Dr. Schley contends
that the district court erred by denying his motion to amend his com-
plaint and by striking his motion for a jury trial. He also asserts that
the magistrate judge applied an erroneous legal standard when assess-
ing his Title VII claims. We affirm.

I

Dr. Donald Schley received his Ph.D. in Old Testament from
Emory University in 1987 and passed doctoral exams at the Univer-
sity of Gottingen in Germany. He had previously received his under-
graduate degree from Eckerd College and his masters degree from the
Candler School of Theology at Emory.

In 1988, Dr. Schley applied for a position as a tenure-track reli-
gious studies professor at the College of Charleston in Charleston,
South Carolina. Later that same year, Dr. Schley attended the annual
conference sponsored by the American Academy of Religion/Society
for Biblical Literature seeking a permanent position in his field. At
the Conference he met a friend, Dr. June McDaniel, who was an asso-
ciate professor at the College. Dr. Schley gave her a copy of his cur-
riculum vitae, which Dr. McDaniel then showed to Dr. Martin
Perlmutter, the chairman of the Department of Philosophy and Reli-
gious Studies at the College. Dr. Perlmutter glanced at the vitae and
returned it to Dr. McDaniel.

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Following a search for faculty in 1988-89, the College hired Dr.
Joseph Hoffman. Dr. Schley admitted at trial that he was less quali-
fied than Dr. Hoffman. After Dr. Hoffman withdrew his acceptance,
the College decided to wait a year to conduct another search for a
tenure-track professor. In the meantime, to fill the continuing need for
an instructor, the College created a one-year, visiting assistant profes-
sorship. This new position was not on the tenure track.

Dr. McDaniel resubmitted Dr. Schley's name, along with his newly
revised vitae, to the hiring committee. At the suggestion of Dr.
McDaniel, who had also told him not to reveal his political and reli-
gious views, Dr. Schley had removed the information in his vitae that
did not relate to his professional experience or qualifications. This
included information about his personal history and his experience
teaching Sunday school. Dr. McDaniel and several other witnesses for
the College testified that including personal information of this type
in a vitae showed a lack of professionalism. Dr. McDaniel also testi-
fied that she advised Dr. Schley not to discuss his political and reli-
gious views only because he had a tendency to get into heated
arguments on these subjects.

Dr. Schley testified that during his final interview for the short-
term position, Dr. Perlmutter told him that his initial vitae prevented
the College from ever considering him for a tenure-track position.
During cross-examination he admitted that Dr. Perlmutter merely told
him that he would never teach at the College permanently. Dr. Perl-
mutter testified that he commonly informed visiting faculty that they
were not automatically on track for tenure. He also testified that he
had not referred to Dr. Schley's original vitae during the interview.
The College offered Dr. Schley the one-year position, and Dr. Schley
subsequently earned a reputation as a competent and well-liked
teacher.

In the fall of 1989, the College once again began its search for a
tenure-track professor. In an advertisement for the position, the Col-
lege specified that it was seeking Ph.D. applicants with a demon-
strated excellence in teaching and a specialization in Biblical Studies.
The College considered over 100 applicants, including Dr. Schley,
who submitted his revised vitae for consideration. Dr. Schley's candi-
dacy was initially supported by several members of the Department.

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However, at the conclusion of the 1989-90 search, the College hired
David Frankfurter after a majority of the faculty on the hiring com-
mittee determined that he had superior credentials.

Frankfurter had completed his doctoral courses in Religions of Late
Antiquity at Princeton University and was in the process of finishing
his dissertation. At trial, the College introduced evidence showing
that it was its policy to consider an applicant who had completed all
requirements for a doctorate except a dissertation. Dr. Perlmutter and
the other members of the hiring committee also testified that they
considered the prestige of the undergraduate and graduate institutions
Frankfurter attended, the excellence of his recommendations, and his
academic promise, as evidenced by the depth of his scholarly interest
and upcoming publications. In addition, he was publishing at an
acceptable rate and was qualified to teach courses in Biblical Studies.

A number of the faculty members who participated in the hiring
process testified that although Dr. Schley was a qualified candidate,
his application was not as strong as that submitted by Frankfurter.
Specifically, these individuals pointed to Dr. Schley's comparatively
weak recommendations, his lack of relevant experience, and a belief
that Dr. Schley was not as academically promising as Frankfurter.

After Dr. Schley fulfilled his contract, the College offered him a
second one-year position as a visiting professor. In 1990, during his
second year, the College advertised for an opening for a tenure-track
assistant professor who could teach a variety of religious studies
courses. The College specified that although the area of specialization
was open, it was seeking to expand and was not interested in addi-
tional New Testament scholars. Although Dr. Schley applied for the
position, several faculty members testified that they believed that Dr.
Schley was not qualified because of his narrow focus on Biblical
Studies. There was additional evidence that the individual who was
eventually hired, Dr. Lee Irwin, was qualified to teach in several of
the fields into which the College was expanding, including Islamic
and Native American religious studies.

Dr. Schley introduced the testimony of a former faculty member
and a student who alleged generally that the faculty was biased
against committed Christians. This testimony was rebutted by other

                    4
members of the faculty. Dr. Schley also testified that he was told by
both Dr. McDaniel and Dr. Perlmutter that he belonged in a church-
related school. Both Dr. McDaniel and Dr. Perlmutter testified that
they had given Dr. Schley advice on ways to improve his vitae, telling
him that only church-related schools would view all the information
in his initial vitae as relevant. Another former student testified that he
was told by Dr. Perlmutter that "someone with a strong religious con-
viction like Dr. Schley would not be appropriate to teach a New Tes-
tament class." At trial, Dr. Perlmutter denied making such a
statement. In addition, as a visiting professor, Dr. Schley taught two
New Testament classes.

A number of professors on the hiring committee, including Dr. Per-
lmutter, were aware of Dr. Schley's religious beliefs and testified that
those beliefs were never a consideration. They pointed to Dr. Irwin's
vitae which listed his experience as a ministry associate for an ecu-
menical campus ministry. Other faculty members testified that they
were not aware of Dr. Schley's beliefs during the relevant periods.

Dr. Schley brought suit under § 1983 and Title VII against the Col-
lege and Dr. Perlmutter in his official capacity, seeking actual and
punitive damages and "such other and further relief" as the court
deemed proper. He alleged that he had been discriminated against
during the College's searches for a tenure-track professor because of
his religious beliefs. The district court dismissed the § 1983 claims
and found that Dr. Schley was not entitled to a jury trial on the
remaining Title VII claims. The district court also denied injunctive
relief. After a bench trial, a magistrate judge entered judgment for the
defendants.

II

Dr. Schley contends that the district court erred by dismissing his
§ 1983 claims, which were based on the First Amendment. He also
contends that he was entitled to a jury trial on his First Amendment
claims and to injunctive relief.

Applying the Eleventh Amendment, the court properly dismissed
the claims for actual and punitive damages brought against the Col-
lege and Dr. Perlmutter in his official capacity, because, under South

                     5
Carolina law, any judgment entered against them would have been
paid out of the state treasury. See Ford Motor Co. v. Department of
the Treasury, 323 U.S. 459, 462-63 (1945). Also, neither states nor
state officials acting in their official capacities are persons within the
meaning of § 1983. Will v. Michigan Dept. of State Police, 491 U.S.
58, 71 (1989). Because as a matter of law Dr. Schley could not
recover actual and punitive damages, he was not entitled to a jury trial
on those claims.

Dr. Schley argues that his prayer for general relief entitled him to
prospective injunctive relief that precluded dismissal of his action
against Dr. Perlmutter in his official capacity. He argues in the alter-
native that the district court erred by denying his motion to amend his
complaint to add a prayer for injunctive relief against Dr. Pennhurst
in his official capacity.

The district court's denial of Dr. Schley's motion to amend to seek
injunctive relief need not detain us. His prayer for"general relief"
entitled him to all the relief justified by the evidence. Fed. R. Civ. P.
54(c). The Eleventh Amendment does not prohibit all suits for pro-
spective injunctive relief brought against state officials in their offi-
cial capacities. Edelman v. Jordan, 415 U.S. 651, 664-67 (1974). We
conclude, however, that it was within the court's discretion not to
create an injunctive remedy against Dr. Perlmutter in his official
capacity. The district court denied the injunction, noting that Dr.
Schley had not taught at the College for three years and had a position
in another college. It held that he lacked standing to represent taxpay-
ers and future applicants. However, we need not rest our affirmance
of the district court's denial of injunctive relief on these grounds.
After the trial on Dr. Schley's Title VII claims, it became clear that
the College did not discriminate on religious grounds, and no injunc-
tion was warranted. Since a request for injunctive relief is equitable
in nature, Dr. Schley was not entitled to a jury.

III

By consent, the magistrate judge conducted the trial on the Title
VII issues. See 28 U.S.C. § 636(c). The Title VII claims, which were
based on events before the enactment of the Civil Rights Act of 1991,

                     6
did not entitle Dr. Schley to a jury. See Landsgraf v. U.S.I. Film
Products, 114 S. Ct. 1483 (1994).

The evidence discloses that from hundreds of applicants, the selec-
tion committees, acting without bias against any candidate on account
of religion, chose the most qualified applicants. The witnesses testi-
fied why they believed the successful candidates' credentials were
superior to those of Dr. Schley. Their testimony showed no taint of
discrimination, and the magistrate judge's acceptance of their expla-
nations is amply supported by the evidence. Several persons who
were not on the selection committees attributed religiously prejudicial
remarks to Dr. Perlmutter, who denied them. Upholding Dr. Perlmut-
ter and other faculty members who were accused of bias, the magis-
trate judge made credibility findings that are justified by the record.

The magistrate judge first analyzed the case according to the for-
mula of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). He found that Dr. Schley presented a prima facie case and
consequently considered the defendants' evidence. At this stage of the
proceedings, the presumptions raised by the prima facie case dropped
from the case, and the factual inquiry became whether the defendants
discriminated against Dr. Schley because of his religion. United
States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-
16 (1983). The magistrate judge's conclusion that the evidence did
not disclose discrimination is supported by substantial evidence.

In response to Dr. Schley's Rule 59 motion, the magistrate judge
again properly denied a jury trial on both the § 1983 claims and the
Title VII claims. Dr. Schley's argument that this is a mixed-motive
case lacks merit. Even if it were such a case, the defendants proved
by a preponderance of the evidence that religious discrimination
played no part in the College's hiring decisions. The magistrate judge
also reviewed the First Amendment claims and found that the evi-
dence established that the defendants did not deprive Dr. Schley of his
rights under this amendment.

                    7
In sum, we detect neither reversible error in procedure nor failure
in the College's proof.

AFFIRMED

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