By Jeff Birren, Senior Writer
There was a time when school athletic directors could hire and fire with impunity. Today schools must expect courts to second-guess those decisions. This recently happened to Northwest Mississippi Community College. A decision to terminate the women’s basketball coach triggered claims for both age and racial discrimination. NWMCC filed an unsuccessful motion for summary judgment, but the Opinion virtually promised victory on one claim (Howell v. Nw. Miss. Cmty. Coll., 2024 U.S. Dist. LEXIS 68035, Case No. 3:23CV33-MP-DAS, U.S. D.C. N.D, Miss. Oxford Div. (4-15-24)).
What
NWMCC is in Senatobia, Mississippi. Enrollment is approximately 7,000 students, including 4,000 students who attend online. According to the school’s website it is known for athletics. It fields teams in nine sports, including women’s “Basketball, Cheerleading, Golf, Rodeo, Soccer, Softball, Tennis and Volleyball”, the “Lady Rangers.” Howell was hired in 2011 as an assistant women’s coach. He later became the head coach, “NWMCC’s first African American head coach of any sport.” After the 2021-2022 season Howell was told “told that his employment contract would not be renewed for the following season.” Howell was not a happy ex-Ranger.
He filed “a charge of Discrimination with the EEOC, claiming that the non-renewal of his employment contract was rooted in age and race discrimination.” The EEOC “issued a Notice of Right to Sue.” Howell did just that on February 24, 2023. The Complaint asserted claims for “race discrimination in violation of Title VII and 42 U.S.C. § 1981 and age discrimination in violation of the Age Discrimination in Employment Act.” (He is currently the” Varsity Girls” basketball coach at Tunica Academy.)
Legal Standards For Separating Wheat From Chaff
Judge Mills stated that summary judgment will be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(a).” All inferences must be drawn in favor of the nonmoving party and the court may not make “credibility determinations or weigh the evidence.”
The “ADEA makes it unlawful for an employer ‘to fail or refuse or hire or discharge any individual or otherwise discriminate against any individual with respect to [the individual’s] compensation, terms, conditions or employment because of such individual’s age.’ 29 U.S.C. §623(a)(1).” Title VII makes it unlawful” to discriminate against any individual based on race, sex, 42 U.S.C. §2000e2(a)1, and also forbids discrimination based on race, color, religion, sex or national origin in admission to, or employment in, any program established to provide apprenticeship or other training, §2000e-2(d).”
Employment discrimination claims “typically rely on circumstantial evidence”. The Fifth Circuit uses a “burden-shifting framework” (Goudeau v. National Oilwell Varco, L.P., 793 F. 3d 470 (5th Cir. 2015)). The plaintiff must demonstrate a “prima facie case of age discrimination by showing that (1) he was discharged; (2) he qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, iii) otherwise discharged because of his age.” Once accomplished, the defendant must produce “evidence of a legitimate, nondiscriminatory reason for the adverse employment action.” If that occurs, “the plaintiff must come forward with evidence that the legitimate reasons proffered were not the true reasons but instead a pretext for discrimination.”
Possible Wheat: Age Discrimination Claim
In the second sentence Judge Mills held that “triable issues of fact exist” and the “this court need go no further than a sworn affidavit” submitted by Howell. In the affidavit, a parent of one of the players asserted that a “relevant decisionmaker”, interim athletic director Mathew Domas, “specifically told him that NWMCC was firing Howell because it was ‘going in a different direction’ and was going to hire ‘a younger coach.’”
This was “direct evidence of age discrimination.” It “admits that Domas wanted Coach Howell fired to replace him with a younger coach.” If this was “found credible by jurors “it “constitutes direct evidence of age discrimination” and as such “it is sufficient to at least allow a jury to consider” the claim. “[I]n an unusual step for a discrimination case of this nature, defendant elected not to submit a reply brief addressing plaintiff’s thorough briefing.” The arguments were “largely unrebutted.”
In its motion NWMCC argued that this claim was based “on one comment allegedly made” by Domas, who “denied” making the statement. It also asserted the declaration was “inadmissible hearsay.” This “is simply incorrect.” Mississippi’s Evidence Code §801(d), A(2)(D) states that such a declaration is not hearsay if it is offered against an opposing party and “was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” There was “no question that Dr. Domas made his alleged statement while he was acting as NWMCC ‘agent or employee’” while in the course and scope of his duties. Other employees may not have been aware of the statements but that did not mean he did not say it. Furthermore, a jury could just as easily disbelieve NWMCC’s employees as it could the player’s parent.
Howell stated the school president asked him how old he was. Howell replied and the president said: “Wow, I didn’t know you were that old!” This seemed “less helpful” “because it involves plaintiff’s own self-serving testimony” and was “less directly tied to the decision to fire him.” If accepted by the jury, it “may well make them more likely to conclude that his age figured prominently in the minds of defendant’s decisionmakers when they decided to fire him.”
The affidavit constituted “direct evidence of discrimination”, and as Howell was replaced by a much younger man, he was able to make a prima facie case of age discrimination. The burden of proof shifted to NWMCC “to provide a nondiscriminatory reason for terminating him.” NWMCC gave reasons for the termination in the motion brief. Howell countered that the first one was “astonishingly pretextual” and in the second example, Howell was “not disciplined” and “only when he was fired did NWMCC reference this past act.” NWMCC did not reply, and there was “sufficient direct evidence of age discrimination” to send the claim to a jury.
Possible Chaff: Race Discrimination Claim
Howell alleged “that his African American race was also a factor in his termination.” This requires “a somewhat lessened burden of proof” because “the plain language of Title VII permits a plaintiff to obtain at least some recovery (such as attorneys’ fees) in case where is he able to prove that race discrimination was at least one ‘motivating factor’ behind his termination. See 42 U.S.C. §2000e-2(m).” This was fortunate for Howell because “this court believes that he needs such a forgiving burden, since he concedes in his brief that: ‘NWMCC hired LaTaryl Williams to replace Howell. Williams is in his thirties. Williams is African American. Howell was fifty-nine when he was terminated.’” Thus, his age discrimination claim is “considerably stronger” than his race discrimination claim.
Howell argued that NWMCC’s cited cases “were not supported by the controlling authority in this circuit.” In Nieto v. L&H Packing Co., 108 F. 3d 621, 624 n.7 (5th Cir. 1997), the Circuit held that an employer cannot immunize itself by hiring a replacement of the same race if the terminated employee was discriminated against. NWMCC “could, and should, have addressed” this “in a rebuttal brief” but failed to file ta reply. The Court “conducted its own review” and found that “none of the helpful authority” cited by Howell has “been overruled by the Fifth Circuit.” Furthermore, as the Supreme Court has “repeatedly pointed out, no single formulation of the prima facie evidence test may fairly be expected to capture the many guises in which discrimination may appear. Furnco Construction Corporation v. Waters, 438 U.S. 567 (1978).” Howell “thus appears correct in his assertion” that NWMCC “is not necessarily entitled to a dismissal of the race discrimination claim based solely in the fact that it hired another African American to replace him.” Nevertheless, “this fact is quite unhelpful” and “clearly raises the bar for him to produce other evidence suggesting that race was at least a motivating factor in his firing.”
Domas allegedly berated coaches and although he apologized to the white coaches, he never apologized to Howell, and always took the “white person’s side” in any argument. Judge Mills thought his best allegation was that the school president told him “that he was being fired because he did not ‘talk’ and ‘act’ like the other coaches.” The Court did “not dismiss these allegations of favoritism shown to white coaches” but “they may be regarded by jurors as quite subjective allegations rather than hard proof of discrimination.” At this stage a court must “view the facts in the light most favorable to the plaintiff as the non-moving party” and cannot state that Howell was “lying”. If the jury believed the president’s “alleged concerns about how” Howell spoke, “it is possible that this evidence could support a race discrimination claim.”
Howell pointed to an incident, captured on video, wherein two white campus officers stopped an African American player on campus. Howell used colorful language to describe the incident, but Judge Mills “carefully reviewed the video” and the officer’s comment “simply reflected his annoyance over a basketball coach attempting to tell him how to do his job.” The player was driving 35mph in a 20mph zone. Howell “was clearly not in a position to know whether” there was good cause to stop the student and the officer “demonstrated considerable leniency to the student, such as by choosing not to cite her for an expired license and by allowing her to address the speeding citation with campus traffic authorities, thereby preventing her insurances rates from being adversely affected.” The video was “more helpful” to NWMCC than Howell.
Howell argued that “NWMCC conceded Coach Howell’s interaction with campus police motivated his termination.” NWMCC and Judge Mills had the same reaction to the video. Howell had “interjected himself into police activities.” The Court could not “speak to the other instances” but “given that it was videotaped, the traffic stop discussed above seems certain to play an outsized role at trial in the jurors’ perception of plaintiff’s interactions with campus police.”
Howell “should seriously consider whether he wished to go to trial solely on his age discrimination claim if he wishes to portray the traffic stop in question as evidence of racism.” That Howell was “fired for opposing racism on campus seems much better suited for a retaliation claim” but “plaintiff did not assert such a retaliation claim either before the EEOC or this court, and it would be far too late” to do so now. Although the evidence on the claim was slight, considering that a “trial will be required regardless”, the court would “wait until the directed verdict stage of the trial to decide whether to submit the race discrimination claim to the jury.” Then, “this court will seriously consider granting directed verdict on plaintiff’s race discrimination claims. It is “quite easy for Fifth Circuit (or this court on JNOV) to simply strike jury findings” unsupported by the evidence.
If it was not yet clear, the Court “reiterates its belief that plaintiff, and his counsel, should take a hard look at the video evidence in this case, as well as the fact that he was replaced by another African American, and ask whether they wish to spend their credibility before jurors in arguing that he was fired on the basis of his race.” Judge Mills stated again that it might dismiss the claim “at the directed verdict stage.”
Comment
Parties filing summary judgment motions generally file reply briefs. NWMCC did not, and Howell escaped summary adjudication on his race discrimination claim by a whisker. It is perhaps unique to see a judge wave the directed verdict flag three times in half a page. Howell got the message. The parties settled and avoided an ugly public. Judge Mills dismissed the case without prejudice (Order (5-8-2024)). Those who hire and fire staff should keep silent about any preferences to hire “younger” replacements, or they may also end up in court, and not be as fortunate as NWMCC.
