UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-1277


JAMES D. DAVIS,

                    Plaintiff - Appellant,

             v.

WESTERN CAROLINA               UNIVERSITY;       UNIVERSITY        OF    NORTH
CAROLINA,

                    Defendants - Appellees.



Appeal from the United States District Court for the Western District of North Carolina,
at Bryson City. Martin K. Reidinger, District Judge. (2:14-cv-00006-MR-DLH)


Argued: May 11, 2017                                            Decided: June 13, 2017


Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Nicole R. Scallon, Christina J. Banfield, WAKE FOREST UNIVERSITY
SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Catherine Faith
Jordan, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellees. ON BRIEF: Robert C. Carpenter, ADAMS, HENDON, CARSON,
CROW AND SAENGER, P.A., Asheville, North Carolina; John J. Korzen, Director,
Appellate Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       James Davis (“Appellant”), a professor of Spanish, was denied tenure from

Western Carolina University (“WCU”).         He then sued alleging WCU discriminated

against him in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq., due to his mental illness. After extensive discovery, the district court

granted summary judgment to WCU concluding that WCU denied Appellant tenure for

reasons unrelated to his alleged disability. We determine that WCU denied Appellant

tenure because of his misconduct, not his disability; therefore, we affirm.

                                             I.

       The district court provided a thorough recital of the facts below such that we do

not need to repeat them in full here. 1 In short, beginning in 2006, Appellant held a tenure

track position at WCU. In 2010, Appellant applied for tenure for the first time but

withdrew his application when Dean Wendy Ford said she would recommend against his

tenure because of concerns about his scholarship. He applied again in 2011, and, in late

2012, WCU denied his tenure application.

       Before WCU’s denial of tenure became final, Appellant filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”) asserting

that he was denied tenure because of his depression and depression-related mental health

impairments.    On November 22, 2013, Appellant received a letter from the EEOC


       1
        We adopt the factual background set forth in the district court’s opinion. See
Davis v. W. Carolina Univ., No. 2:14-CV-00006-MR-DLH, 

, at *6
(W.D.N.C. Feb. 19, 2016).

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granting him the right to sue. On May 5, 2014, Appellant filed this action alleging that

WCU denied him tenure because of his mental health related disabilities in violation of

the ADA.

       After extensive discovery and upon WCU’s motion, the district court granted

summary judgment to WCU. The court concluded that Appellant failed to present any

evidence demonstrating that his discharge occurred as the result of discrimination.

Rather, it determined that WCU denied Appellant tenure due to his numerous instances of

misconduct.

       Appellant timely appealed.

                                            II.

       We review the district court’s grant of summary judgment de novo. See RLM

Commc’n v. Tuschen, 

, 195 (4th Cir. 2016).             “Summary judgment is

appropriate only if no material facts are disputed and the moving party is entitled to

judgment as a matter of law.” Dreamstreet Invs., Inc. v. MidCountry Bank, 

,

829 (4th Cir. 2016).

                                            III.

       To establish a discrimination claim pursuant to the ADA, a party must establish

his disability was the “but-for” cause of an adverse employment decision. Gentry v. E.

W. Partners Club Mgmt. Co., 

, 235 (4th Cir. 2016). If an employer acts

with a mixed motive -- both a discriminatory and non-discriminatory reason -- then the

employer is not liable. See 

words, causation requires disability to be more

than a motivating factor: it must be the only motivating factor. See 

the undisputed evidence amply demonstrates that WCU’s decision was

motivated primarily by Appellant’s numerous instances of gross misconduct and not his

disability. Appellant’s gross misconduct included, but was not limited to, a poem he

wrote depicting the rape of Dean Ford, a story he wrote about killing a faculty member,

and threats directed against those involved in the tenure process. Because of the alarming

and continuous nature of Appellant’s misconduct, multiple faculty members suffered

from anxiety, sleep deprivation, and were afraid to come to work.

      Indeed, as to Appellant’s misconduct, Dean Gibbs Knotts, who recommended

against Appellant’s 2011 tenure application, specifically identified an incident where

campus law enforcement filed a report against Appellant for making derogatory

comments to construction workers who had called the police to have Appellant’s illegally

parked vehicle towed. Additionally, Dean Knotts described the general fear Appellant

engendered amongst the faculty as a further reason he opposed Appellant’s tenure. For

example, one colleague was “scared to come to work” in light of Appellant’s comments

and sought an arrangement to teach on-line to avoid interacting with Appellant. J.A.

146. 2 Another colleague had to see a therapist and considered resigning from WCU

because of Appellant. The University Collegial Review Committee also voted to deny

tenure to Appellant because it “was concerned about [Appellant’s] pattern of disruptive

behavior.” 

      2
          Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.

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       Therefore, based on the entire record, we hold that a reasonable jury would not

conclude that discriminatory animus was the but-for cause of WCU’s negative tenure

determination. See 

.

       Moreover, in accord with our sister circuits, we are hesitant to second guess the

“subjective and scholarly judgments” involved in professorial employment matters.

Jiminez v. Mary Washington Coll., 

, 376 (4th Cir. 1995) (quotation marks

omitted); see also E.E.O.C. v. Amego, Inc., 

, 145 (1st Cir. 1997) (“In the

context of academic tenure cases, this court has been attentive to the need to balance the

right of a plaintiff to be free from discrimination against the undesirable result of having

the court sit as a ‘super-tenure committee.’” (quoting Villanueva v. Wellesley Coll., 

, 129 (1st Cir. 1991))).      Ultimately, in a circumstance such as this where

substantial evidence supports the lawful denial of tenure, we will not interfere with that

decision.

                                            IV.

       For the foregoing reasons and for the reasons ably stated in the district court’s

opinion, we affirm.

                                                                               AFFIRMED




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