By Jeff Birren, Senior Writer
Travis S. Thomas, Sr. sued Auburn University for race discrimination, hostile work environment and retaliation in 2021. One claim was dismissed in 2022. Both sides later filed summary judgment motions. Thomas’s motion was denied, Auburn’s motion was granted. Thomas appealed, and in an unpublished opinion, the Eleventh Circuit affirmed (Thomas v. Auburn University, Case No. 23-13935, per curiam (10-9-2024)).
Thomas’s Employment
Thomas attended Auburn University as a student, earning a B.A. and two M.A.’s in education. In 2017 he was hired as an academic counselor new role created specifically for him: Director of Academic Support Services.” He “supervised student-athlete academic support services for the football team.”
Thomas was terminated on March 1, 2021. He moved rapidly, suing Auburn on March 4, 2021. The Complaint contained three causes of action for purported violations of Title VII, 42 U.S.C. §2000e-2(a)(1) et seq, race discrimination, hostile work environment, and retaliation. Auburn filed a motion to dismiss on March 31. Thomas filed a First Amended Complaint on April 9. Auburn brought another motion to dismiss. Following a hearing, the District Court ruled that Thomas “shall have leave to file an amended complaint on or before 6/30/2021 to address the issues outlined in the Defendant’s 15 Motion to Dismiss, as well as the concerns expressed by the Court at oral argument” (Thomas v. Auburn University, No. 3:2121-cv-00192 RAH-SMD WO (“Thomas”) (M.D. Ala.) (6-24-21)). The Second Amended Complaint followed, leading to yet another motion to dismiss.
The motion was granted in part and denied in part. The Court dismissed the hostile work environment claim but denied the motion as to the race discrimination and retaliation claims (Thomas, (2-11-22)). The opinion was examined by Gary Chester, Senior Writer, Sports Litigation Alert, Thomas v. Auburn University: Was Racism Behind Academic Advisor’s Dismissal? (4-22-2022). Thomas subsequently filed a Third Amended Complaint.
Summary Judgment
The inevitable battles over discovery and protective orders commenced. Two years later, the parties filed competing motions for summary judgment on May 5, 2023. Nearly six months of dueling motions followed, including one by Thomas to file an amended motion for summary judgment. That was granted. The District Court ruled on the summary judgment motions on November 1, 2023. It applied the test enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to the race discrimination claim. When analyzing the retaliation claim, the Court applied several cases, including Gogel v. Kia Motors Mfg. of Georgia, Inc (967 F.3d 1121 (11th Cir 2020) (en banc)). So, too, did the Eleventh Circuit. The analysis of the claims will be postponed until the discussion of the Court of Appeals opinion.
Several statements made by the District Court are worth noting. Thomas had submitted a 20-page “self-serving declaration in lieu of citing his own deposition testimony.” That “evidences a tactic that the Court frowns upon and is greatly disfavored. See Sears v. PHP of Alabama, Inc., Case No. 2:05CV304-ID, 2006 WL 932044, at 11 (M.D. Ala. Apr. 10, 2006) (noting ‘the general view of courts that deposition testimony is more reliable than affidavit testimony, given that the testimony of the deponent generally has been scrutinized through cross examination’” (Thomas, 2023 U.S. Dist. LEXIS 195983, (FN 6) (11/01/23)).
Thomas asserted, “without citation to law or the record, that his exclusion from leadership team meetings, removal of certain duties and responsibilities, an allegedly … unjustified performance review, and allegedly disparaging and critical remarks regarding him and his work rise to the level of actionable adverse employment actions …. Based on the evidence presented, and the general lack of development of this argument, Thomas has not sufficiently shown these actions to rise to the level of what are typically considered actionable adverse employment actions, especially since there is no assertion that Thomas’s compensation, title, or position were fundamentally altered.”
A party opposing summary judgment must set out the arguments, citing both supporting evidence and legal authority. “Thomas, by quickly asserting these arguments in a few sentences without citations to case law, has failed to meet this threshold burden in articulating how these actions qualify as adverse employment actions that may be supported by the record.” These are not the Court’s only criticisms, but it will suffice. The District Court denied Thomas’s motion and granted Auburn’s motion for summary judgment. The Court “taxed” costs “of $4,302.92” against Thomas. Thomas appealed to the Eleventh Circuit on December 1, 2023. The Circuit placed it on the “Non-Argument Calendar.”
In The Eleventh Circuit
Thomas “initially impressed his supervisors” and “a new role was created specifically for him.” Unfortunately, in 2019 his wife was diagnosed with cancer and passed away. His “work started to decline.” His supervisors “took turns taking Thomas meals” and did other things to offer “support”, including pausing their regular meetings with him and seeking to lighten his workload. They saw support. “Thomas saw racial discrimination.” Thomas took his complaints to a department HR official, then to Karla Gacasan, the Assistant Athletic Director for Human Resources. He filed a complaint with the EEOC on June 9, 2020, “asserting race discrimination, sex discrimination and hostile work environment.” His 2020 performance evaluation rating was “Marginal”, and he filed a second EEOC complaint on June 30, 2020. Nothing in either opinion indicates if the EEOC acted.
In December 2019, a football player received a failing grade in a class, rendering him ineligible to play in the “team’s bowl game.” After learning about the impact on the player, the professor changed the grade. Thomas did not know about the grade change. In a January 2020 meeting, Thomas stated that the player had been ineligible. He was then told that the grade had been changed. Thomas was “concerned that the grade change was improper, although he did not share his concern at the meeting.” He remained quiet, for a year.
The following January, “Thomas reported his concern” to the University. The official “determined that waiting more than a year to report a potential NCAA violation” violated NCAA bylaws and University policy. He recommended that Thomas be terminated. Gacasan concurred, and on March 1, 2021, Thomas was fired.
The Circuit stated that it reviews a grant of summary judgment “de novo, reviewing the evidence in the light most favorable to Thomas and drawing all inferences in his favor. Pizarro v. Home Depot, Inc., 111 F.4th 1165, 1172 (11th Cir. 2024.)” Summary judgment “is appropriate if ‘there is no genuine dispute as to any material fact’ such that the University is ‘entitled to judgment as a matter of law.’ Fed. R. Civ. P. 56 (a).”
Title VII Race Discrimination Claim
Such claims are tested in “a three-step burden shifting framework designed to draw out the necessary evidence in employment discrimination cases” (McDonnell Douglas, 411 U.S. at 802). A plaintiff can establish a “prima facie” case of discrimination by showing that he or she is “(1) a member of a protected class, (2) suffered an adverse employment action, (3) was qualified for his job, and (4) his employer treated differently one or more similarly situated persons outside his protected class.”
This fourth step “is met” if the plaintiff presents “evidence of a comparator—someone who is similarly situated in all material respects.’ Jenkins v. Nell, 26 F4th 1243, 1249 (11th Cir. 2022).” Comparators will normally have been subject to the same employment policy, “will ordinarily (although not invariably have been under the jurisdiction of the same supervisor as the plaintiff,” and share the same employment history.
Thomas “cannot establish a prima facie case of race discrimination because he fails to present a sufficient comparator.” Thomas pointed to three white female colleagues, stating that along with Thomas, they made up the “Leadership Team”, met regularly, “had the same supervisor, “shared a similar employment or disciplinary history”, and engaged in the same basic conduct in leading” the unit. Thomas actually reported to one of his alleged comparators. That person, and another “comparator”, reported to the third. Furthermore, Thomas did not have the same employment history. The others were all assistant athletic directors, thus at a higher level than Thomas. They may have met regularly, but supervisors “regularly meet with subordinates.” They “had responsibilities that exceeded Thomas’s.” Furthermore, they had been employed at Auburn far longer than had Thomas. He worked there for 4 years. His immediate supervisor worked there for 13 years. Her supervisor had been there for 19 years and in turn reported to a third “comparator” who was employed at the school for 29 years.
Finally, Thomas “does not show that” these other alleged comparators “engaged in the same misconduct that he did.” Nothing indicates that they believed the grade change was improper; failed to timely report a potential violation; or failed to supervise “student athletes under their supervision” leading to his “loss of supervisory responsibilities and “marginal” performance evaluation. Thomas did “not identify appropriate comparators” and thus “cannot satisfy the first step of the McDonnell Douglas framework.”
Alternative Theory
A plaintiff can alternatively defeat summary judgment by presenting “a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination by a decisionmaker. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir (2011).” This is “simply enough evidence for a reasonable factfinder to infer intentional discrimination in an employment action—the ultimate inquiry in a discrimination lawsuit. Tynes v. Florida Dep’t of Juv. Just., 88 F.4th 939, 946 (11th Cir. 2023)).” Thomas did not make that showing.
Thomas argued that the purported reasons for his termination were a “pretext.” “He seems to claim that by questioning the student-athlete’s eligibility at the certification meeting he reported the violation.” Thomas said that he was told to not discuss it further. That was not enough. He did not “question the propriety of the grade change at the certification meeting, he merely questioned whether the student athlete was eligible because he was not aware that the grade had in fact been changed.” Furthermore, even if he had had been told to not discuss it further, “this would not alleviate his duty to report a potential violation.”
Thomas made a number of complaints about his treatment, including being “disparaged”, being excluded from meetings, being downgraded and “evaluated improperly” but “he does not connect this alleged mistreatment to his race.” His “claims are conclusory, and he fails to tie any of them to evidence of racial animus.” The Court saw “no error” in granting summary judgment on the race discrimination claim.
Title VII Retaliation Claim
Retaliation claims require a plaintiffs to “show ‘(1) that she engaged in statutorily protected activity, (2) that she suffered an adverse action, and (3) that the adverse action was casually related to the protected activity’” (Gogel, 967 F.3d at 1136). Thus, the protected activity was the but-for cause of the adverse action. If “there is a substantial delay between the protected expression and the adverse action in the absence of other evidence tending to show causation, the complaint fails as a matter of law. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).” Therein lay the problem.
He engaged in protected activity when he brought the EEOC charges against the University. The District Court and the Circuit assumed the HR complaints were also protected activity. However, “Thomas does not connect any of those actions to his termination in March 2021, over seven months later.” He argued that there was a whole series of adverse actions. The Court went through the list, but stated that what “Thomas does not do, however, is to show how any of these actions were taken because of his EEOC charges and HR complaints.” “[M]any adverse actions” may have “increased” after his protected activity, but as Auburn pointed out, he complained about his treatment “before Thomas brought his EEOC charges.” (But why else file EEOC charges?) Finally, “for those that happened after either the HR complaints or EEOC charges, Thomas fails to show a causal connection. For this reason, his retaliation claim cannot survive.” The Court ended by expressing “sympathy for the personal loss suffered by Thomas” but he failed to “present enough evidence of racial discrimination and retaliation to survive summary judgment”.
Editorial
Thomas is unlikely to find solace in the Supreme Court. An unpublished opinion is not likely destined to be one of the eighty or so cases that body currently accepts. It is ironic that Thomas complained about his treatment by women supervisors. Surely that was not contemplated by Congress when it passed Title VII decades ago.
Team Thomas had issues. There was little reason to have raced to the courthouse. Thomas was entered an Alabama tiger-den and suing a well-heeled and prominent defendant. That required careful attention to detail, seemingly missing here. There was ample time to research and craft a complaint. Perhaps the decision to use a 20-page declaration was to save the expense of going through the deposition, or because Thomas had not covered all of the points that counsel wished to use in filing and opposing summary judgment motions. It did not impress the court. There were also internal issues as his legal team did not remain constant. One counsel began the case and later withdrew. Another came in, and substituted out a year later, and there were two more motions to be substituted out.
Thomas may be in the right, but neither court saw the “mosaic.” Should any reader think this article intends to convey a pro Auburn sentiment, rest assured that if Auburn never wins another football game, it will be neither here nor there to the author. Anger, even righteous anger, is no substitute for fulfilling the required legal tests.
