The 6th U.S. Circuit Court of Appeals ruled for the University of Detroit-Mercy (UDM) and its athletic director in a case where both were sued by a former assistant basketball coach, who claimed that they retaliated against him in violation of Title VII of the Civil Rights Act of 1964.
The panel of judges found specifically that plaintiff Carlos Briggs failed to establish the requisite prima facie case of retaliation “because he did not reasonably believe that he was engaging in protected activity when he reported an affair between a university athletic director and an assistant coach or when he complained of favoritism resulting from the affair.”
The aforementioned “affair” involved the athletic director, Keri Gaither, and assistant basketball coach, Derek Thomas.
Briggs, who began working at UDM in 2007, learned of the affair in August 2009, during a team exhibition trip to Spain. While initially opting not to say anything, Briggs changed his mind when it “started affecting the basketball team, (his) job, and things like that.” He initially reported the affair to the head basketball coach in 2010 and again in 2011. Briggs claimed that he felt that Gaither:
rejected candidates that Briggs had identified for basketball scholarships so that candidates recruited by Thomas would face less competition for scholarships;
traveled with the team to away games so Thomas could illicitly “slip into [her] hotel room after the team’s curfew, causing the players to leave their rooms to go stand outside the door to [her] room, giggling while they listened to the sounds of Gaither and Thomas apparently having sex;”
engaged in behavior that elicited outraged calls to Briggs from parents who were concerned about their sons’ exposure “to Gaither[‘s] and Thomas’ sexual conduct;”
openly showed favoritism to some players as a reward for their silence; and
unfairly punished other players who might be expected to divulge the affair or who were Briggs’ recruits, including removing several players from the basketball program, resulting in their leaving UDM.
Dissatisfied with the response, Briggs, on August 26, 2012, disclosed his knowledge of the affair as an “anonymous” reporter via UDM’s web-based whistleblower tool.
Steve Nelson, UDM’s Associate Vice-President for Human Resources, acknowledged the report and asked Briggs “to provide more details to facilitate the investigation.” Briggs was initially hesitant, allegedly because he desired to remain anonymous. Nelson nevertheless assured Briggs that UDM would protect him from any retaliation, according to the court. Eventually, Briggs agreed to meet Nelson at a restaurant on September 7, 2012 to discuss the whistleblower report.
“After this face-to-face meeting with Nelson, Briggs alleges that UDM either directly or indirectly disclosed his identity to Gaither, resulting in (1) increased hostility and harassment by Gaither, and (2) Gaither falsely accusing Briggs of misconduct on the job,” wrote the court.
UDM investigated the allegation contained in Briggs’ whistleblower report, but Gaither and Thomas, at the time, denied any sexual relationship. UDM closed its investigation of Briggs’ report on September 15, 2012, and conveyed to Briggs that “appropriate action has been taken.”
Dissatisfied with UDM’s investigation and Gaither and Thomas’ continued employment, on September 18, 2012, Briggs emailed Nelson and copied UDM’s president, stating that the “lines of authority have been permanently compromised” and questioned whether there was “anywhere else he can go to get this cleaned up.” UDM did not disclose the contents of its investigation but assured Briggs that “he would be fine and should just go back to work.”
Meanwhile, Briggs allegedly had his own workplace conduct issues, unrelated to his co-worker’s alleged affair with the AD.
For example:
On October 10, 2012, UDM’s Head Women’s Basketball Coach, Autumn Rademacher, complained to UDM that Briggs interfered with her ability to obtain a head coaching job at Eastern Michigan University (EMU).
On October 14, 2012, UDM received a complaint from Mort Meisner, head of UDM’s PR contracting firm, that Briggs had threatened and/or assaulted Mort Meisner and his daughter at a UDM facility on October 12, 2012.
Nelson met with Briggs to discuss the complaints. Briggs denied interfering with Rademacher’s EMU job and denied threatening/assaulting Mort Meisner and his daughter. In investigating Rademacher’s complaint, UDM reviewed cell phone activity from work-issued phones in the athletics department. In the course of that investigation, UDM inadvertently discovered text messages that proved Gaither and Thomas’ affair, and decided to quickly act on the information.
Within a few days, on October 31, 2012, UDM advised Thomas and Gaither that their employment would be terminated, and Gaither, given her 29-year tenure at UDM, opted instead to voluntarily retire. The following day, on November 1, 2012, UDM terminated Briggs’ employment. The termination letter pointed to his aforementioned transgressions.
Briggs sued Gaither and UDM, alleging violations of state and federal law claims. The defendants ultimately moved to dismiss the lawsuit. On the federal front, it argued that Briggs did not make a prima facie case of Title VII retaliation because he failed to demonstrate two necessary elements (1) that he engaged in protected activity under Title VII, and (2) that there was a causal connection between such activity and his termination.
Briggs opposed the motion as to his state law retaliation claim, but did not address his Title VII retaliation claim in the response. A district judge granted summary judgment on all six claims on May 27, 2014. Briggs appealed that part of the lawsuit involving his Title VII retaliation claim, arguing “that (1) he did not forfeit any argument against summary judgment of his Title VII retaliation claim, and (2) the district court’s analysis preceding its grant of summary judgment was inadequate.”
The court noted that under Title VII, “there are two types of protected activity: participation in a proceeding with the Equal Employment Opportunity Commission (‘EEOC’) and opposition to an apparent Title VII violation. Wasek v. Arrow Energy Servs., 682 F.3d 463, 469 (6th Cir. 2012).
“With respect to the first type of protected activity, Briggs was not retaliated against because he participated in an EEOC proceeding. To the contrary, his employment was terminated before he filed a charge of discrimination with the EEOC. Turning to Briggs’ ‘opposition’ to Title VII violation(s) as the basis for his alleged protected activity, the district court considered Briggs’ assertion that he was opposing sex discrimination by reporting Gaither’s affair and favoritism to UDM, and cooperating with UDM’s investigation into his whistleblower report. Moving for summary judgment, UDM argued that Briggs neither engaged in protected activity nor had a good faith reasonable belief that he was doing so. Before the district court, Briggs failed to respond to this argument.” Also, Briggs did not contest “the district court’s finding that UDM did not engage in sex discrimination or any other conduct made unlawful by Title VII.”
Briggs’ last chance centered on whether he “had a reasonable and good faith belief that he was reporting conduct that was unlawful under Title VII when he reported the affair and its alleged impact,” a fact which would also have bolstered his appeal.
“The record before the district court suggested that Briggs did not believe he was engaging in protected activity when he complained about the affair or when he participated in the ensuing investigation,” wrote the court. “For example, in his response to UDM’s summary judgment motion, Briggs admitted that he did not tell anyone about Gaither and Thomas’ affair initially because the conduct only affected them and, although Briggs did not approve of the affair, he did not consider himself to be the ‘morality police.’ In other words, Briggs recognized that an affair, while perhaps morally questionable, was not itself in violation of Title VII.
“However, as the affair continued, Gaither allegedly began openly displaying favoritism towards Thomas at Briggs’ expense, treating Briggs in a harsh manner and unfairly devaluing his work in order to further Thomas’ career. By the 2010-2011 season Gaither had allegedly blocked or rejected several student-athletes recruited by Briggs without justification in an attempt to have available scholarships awarded to players recruited by Thomas. Despite these circumstances, Briggs waited another two years before he was driven to submitting a whistleblower report, which he states he did because of harm to his career and injustice done to student-athletes as a result of Gaither’s open favoritism. On these facts, the question becomes whether Briggs reasonably believed that an affair combined with favoritism was unlawful under Title VII. Briggs never argued before the district court that he believed that complaining of favoritism for a paramour was protected activity under Title VII, much less that such a belief would be reasonable.”
Carlos Briggs v. University of Detroit-Mercy, et al.; 6th Cir.; Case No.14-1725, 2015 U.S. App. LEXIS 7984; 127 Fair Empl. Prac. Cas. (BNA) 23; 2015 FED App. 0356N (6th Cir.); 5/12/15
Attorneys of Record (for plaintiff) Arnold Edward Reed, Arnold E. Reed Assoc., Farmington Hills, MI. (for defendants) Donald B. Miller, Rebecca S. Davies, Joseph E. Richotte, Butzel Long, Detroit, MI.
