The 11th U. S, Circuit Court of Appeals has affirmed a district court’s holding that an African-American male assistant coach of the women’s basketball team did not establish claims for either retaliation or disparate treatment under Title VII.
Jonathan S. Nichols had claimed specifically that he was discriminated against because a white female coach received a higher salary, he was suspended for allegedly making sexual advances against a player, and he was not hired for a head coaching position.
Nicholas was hired as the assistant coach of the women’s basketball team at the University of Alabama-Birmingham on December 27, 2001. At the time, Jeannie Milling was the head coach of the UAB team and Amy Champion was the associate coach. In 2003, Milling investigated allegations that the plaintiff had made improper sexual advances toward a student on the team. On September 30, 2003, Milling suspended Nicholas with pay and banned him from having contact with the players.
On October 24, 2003, Milling explained in a letter to Nicholas that he had the option of resigning his position or receiving new coaching responsibilities (not including managing players) until his employment contract with UAB expired in June 2004. The plaintiff chose to be re-assigned. Milling complained to UAB administrators in November and December 2003 that Plaintiff continued to violate her order not to have contact with players.
On November 13, 2003, Nicholas sent a letter to UAB Athletic Director Watson Brown, alleging that Milling had engaged in discriminatory conduct. The plaintiff also filed a discrimination charge with the Equal Employment Opportunity Commission.
On January 6, 2004, Brown advised the plaintiff in a letter that he was being reassigned and that his remaining coaching duties were removed.
That spring, Milling was fired from UAB. The plaintiff applied to become head coach, but UAB instead selected Audra Smith, an African-American female, for the position. Brown testified that he hired Smith as head coach because, although Plaintiff had worked at UAB, Brown had experience with the women’s basketball program at the University of Virginia, one of the top programs in the country.
The Plaintiff filed a Title VII claim against the defendant alleging: “(1) disparate treatment based on race and gender for a salary difference between Plaintiff and Amy Champion, the former UAB associate coach of the Team, (2) disparate treatment based on race and gender for being suspended after it was alleged that he sexually harassed students, (3) disparate treatment based on race and gender for Plaintiff’s 2004 termination, (4) disparate treatment based on gender for not being hired as head coach in 2004, (5) retaliation for eliminating Plaintiff’s coaching duties before his employment contract expired in 2004 and for terminating Plaintiff as assistant coach and not hiring Plaintiff as head coach.”
The defendant filed a motion for summary judgment alleging that Nicholas had failed to establish his prima facie case of disparate treatment discrimination and that it had established legitimate, nondiscriminatory reasons for paying the plaintiff and Champion different salaries, for suspending the plaintiff, and for not hiring the plaintiff as head coach. The defendant also argued that the plaintiff had not presented a prima facie case of retaliation because the plaintiff did not show that he suffered an adverse employment act as a result of his filing EEOC charges and because either too much time elapsed between Plaintiff’s original EEOC charge and the alleged retaliatory acts or the alleged retaliatory acts occurred before the defendant received notice of the plaintiff’s EEOC charge.
The district court concurred that the plaintiff had not established a prima facie case of discrimination on his disparate pay claim or his disparate discipline claim. The district court also determined that the plaintiff’s disparate discharge claim failed because the plaintiff had not been discharged. On the plaintiff’s disparate hiring claim and his retaliatory discharge claim, the district court concluded that the plaintiff had established his prima facie case, that the defendant had offered legitimate nondiscriminatory reasons for not hiring the plaintiff, and that the plaintiff had failed to offer sufficient evidence to show that a material question of fact existed on whether the defendant’s proffered reasons were pretextual.
The district court’s grant of the motion for summary judgment led to the plaintiff’s appeal.
The 11th Circuit agreed with the lower court that the plaintiff had failed to establish a prima facie case for disparate pay because he had not demonstrated that he occupied a job similar to that of a more highly paid person. “Champion and (the plaintiff) had different job titles and responsibilities; and Champion was the Team’s only recruiting coordinator,” wrote the court. “In addition, Champion had served as a coach at UAB for several years longer than (the plaintiff).”
Similarly, the panel found the plaintiff failed to establish a prima facie case for disparate discipline because he makes no allegations that the defendant failed to discipline a similarly situated employee for similar conduct.
Turning to his claim of disparate discharge, the panel restated the plaintiff’s argument “that he suffered disparate treatment when his employment contract was not renewed following its expiration in June 2004. Defendant responds that Plaintiff’s employment contract was not renewed because Plaintiff did not apply for a position after Audra Smith took over as the Team’s new head coach in April 2004. Defendant also asserts that UAB never promised a new employment contract to Plaintiff and that Coach Smith retained no assistant coaches who had worked previously for Coach Milling.
“To establish a prima facie case of disparate treatment based on an employee’s discharge, Plaintiff must show that (1) he is a member of a protected class, (2) he was qualified for the position, (3) he suffered an adverse employment act, and (4) his employer treated similarly situated employees outside of his protected class more favorably. Wilson, 376 F.3d at 1091. Here, none of the assistant Team coaches working for UAB before Smith became head coach continued to work for UAB under Coach Smith. Therefore, even assuming that Plaintiff satisfied the first three parts of his prima facie case, Plaintiff has not satisfied the fourth part because no similarly situated employees outside of Plaintiff’s protected class were treated more favorably than Plaintiff.”
While the plaintiff did successfully establish “a prima facie claim for disparate hiring, he did not show that the defendant’s legitimate non-discriminatory reason for not hiring him was pretextual.” As such, according to the panel, the defendant is entitled to summary judgment. Similarly, the panel agreed with the lower court that the plaintiff’s claim for retaliation based upon the defendant’s decision not to hire him as head coach or to renew his contract upon expiration also fails.
Jonathan S. Nichols v. Board of Trustees of the University of Alabama; 11th Cir.; No. 06-14662; LEXIS 24463; 10/17/07
Attorneys of Record: (for appellant) John D. Saxon, John D. Saxon, P.C., Birmingham, AL. (for appellee) Lisa Huggins, Tyrone Quarles, Office of Counsel UAB – University of Alabama System, Birmingham, AL.
