By Jeff Birren, Senior Writer
Paul Gagliardi was the men’s tennis coach at Sacred Heart University (“SHU”). He felt he was being mistreated because the women’s tennis coach was paid more. Gagliardi raised this issue and was later terminated. He filed a Complaint that asserted federal claims of gender discrimination, and for retaliation after he reported his “inequitable treatment.” Gagliardi’s Complaint, however, left out many relevant facts. SHU prevailed in its motion for summary judgment and the Second Circuit recently affirmed in an unpublished opinion, (Gagliardi v. Sacred Heart University, (“Gagliardi”), No. 20-629-cv, 2021 U.S. App. LEXIS 8991, at 3 (3-29-21)).
Gagliardi played high school tennis at Branford High School in Connecticut, college tennis at Providence and three years as a professional player in Mexico, Argentina, Chile, Poland, and Australia. He later started coaching and became SHU men’s coach in 2006. His position was “at will” (Gagliardi v. Sacred Heart, U.S.D. Conn, No. 3:17-cv-857 (VAB), Ruling And Order On Motion For Summary Judgment, at 2 (7-16-19)). Almost immediately, “Gagliardi viewed the position as “a full-time position with part-time pay… and began asking for a raise and a full-time appointment” (Id.). He complained about what he viewed as a major discrepancy between his part-time salary as the men’s coach and the much larger salary of the women’s coach. Despite his complaints, Gagliardi continued to get positive performance evaluations and a raise (Id. at 3). However, it was not enough to satisfy him.
In August 2016 Gagliardi accepted a full-time position at a high school, intending to keep his SHU position, and sent an email to SHU’s Athletic Department to inform them (Id. at 4). During the first six weeks of SHU’s season, Gagliardi arrived late to every single practice, and missed several practices entirely. He also did not attend the first day of the UConn Men’s Invitational Tournament (Id.). In his deposition, Gagliardi justified his behavior:
“And that was the gist of the conversation in terms of if I’m part-time, then I’m going to work part-time hours, and how that was going to play out. And I didn’t want to go into my first couple weeks of teaching and take a sick day or a personal day for another job, considering that information was publicly available on the Sacred Heart website. And so I felt that would not be a good idea …” (Id. at 5).
Gagliardi admitted that he did not tell his supervisor that he was going to miss the first day of the UConn tournament until that week. He also admitted that he missed most of the first day of the Yale Invitational. As a result, SHU fired Gagliardi in late September (Id.).
He received a right-to-sue letter from the U.S. Equal Opportunity Commission in February 2017. Gagliardi filed the Complaint in May 2017, and an Amended Complaint several weeks later (Id.). He alleged that he was a man coaching a men’s team, and that he was discriminated against because he was paid less “than other, similarly situated female coaches, by failing to provide the same benefits to him as female coaches, and by failing to provide the same support to him … that was provided to female coaches” (Gagliardi at 4). He also claimed that SHU retaliated against him because of his complaints about how he was treated (Id. at 6). SHU moved for summary judgment in 2018. The motion was granted in 2019 and Gagliardi appealed to the Second Circuit.
In the Second Circuit
Oral argument was on March 11, 2021, and the “Opinion” came 18 days later. The Circuit stated that summary judgment “is appropriate only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a mater of law.” It is reviewed de novo. The facts are viewed in the light most favorable to the non-moving party, though the non-moving party “must offer some hard evidence showing that its version of the events is not wholly fanciful” (Id. at 4).
Discrimination and retaliation claims are both analyzed under “the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” A “plaintiff must first establish a prima facie case of discrimination.” The “burden then shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason for the adverse employment action.’” If that happens, “the plaintiff’s claims survive summary judgment only of his evidence ‘show[s] circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination’ or, in the case of a retaliation claim, that the retaliation ‘would not have occurred in the absence of the retaliatory motive’” (Id.) (internal citations omitted).
Gagliardi initially claimed that he was discriminated against because he was a man coaching a men’s team. His Amended Complaint alleged that he was discriminated against because he was paid less than similarly situated female coaches, that he did not receive the same benefits, nor the same support (Id.). However, the District Court concluded that he failed to establish a prima facie case by showing that this “occurred under circumstances that gave rise to an inference of discrimination.” On appeal, Gagliardi argued that it “failed to properly consider his evidence of discriminatory intent” (Id. at 5).
This requires showing that the plaintiff was treated less favorably than a similarly situated person outside of the protected group. Gagliardi argued that he was merely a part-time coach while the women’s tennis coach was fulltime and had a higher salary. The Circuit stated that he was “hardly a suitable candidate to establish gender discrimination” (Id.). In the first place, the women’s coach was also a man. Furthermore, that man had worked for SHU for 24 years as opposed to Gagliardi’s twelve years. Moreover, that man was also the Senior Athletic Director who only devoted approximately 30% of his time to coaching tennis. In addition, the uncontroverted evidence was that the women’s tennis team had “significantly more members than the men’s tennis team.” Gagliardi thus failed to “put forth evidence from which a rational trier of jury” could find that any of the women’s teams coached full-time by women “were suitable comparators” (Id.).
His conclusory assertions that he was similarly situated to female coaches was “insufficient to satisfy his minimal prima facie burden.” Other than his “unsuccessful attempt to find an even arguably similarly situated comparator, there is a complete absence of any evidence … to support his claim of gender discrimination.” Finally, Gagliardi also admitted that no one at SHU made anti-male or sexist comments against males. The District Court therefore “properly granted summary judgment” on the discrimination claims (Id. at 6).
Gagliardi also appealed summary judgment on his retaliation claim, based on his “protected activity” of making oral and written “complaints of gender discrimination.” He claimed the District Court “erred in concluding that no inference of causation could be drawn from temporal proximity.” However, his first complaint was almost a full year prior to his termination. Undeterred, he argued that his second letter to Human Resources was much closer in time to his termination, and that “is certainly enough time” to set forth a prima facie case (Id.).
Even if Gagliardi could establish a prima facie case of retaliation, SHU “articulated legitimate, non-discriminatory reasons for terminating” him. While coaching at SHU that September, he was “also teaching full time at a high school.” Consequently, Gagliardi’s performance at SHU “deteriorated in a substantial way, including habitual lateness to practices, missed practices, late arrival to a tournament, and a missed day of a tournament.” The burden shifted back to Gagliardi to “prove that the desire to retaliate was the but-for cause of his termination.” The District Court found he “failed to produce evidence that could meet that ultimate burden.” The Circuit agreed (Id.).
Gagliardi attempted to create disputed facts, but it was “uncontroverted” that he missed between two and five practices, that he was significantly late for one of the matches, that he missed the first day of the UConn Tournament, and that he “regularly arrived thirty minutes late to every practice that he attended in the fall 2016 season because of his other job.” Gagliardi tried to make light of these issues by stating that he had informed SHU that because it had not made him a fulltime employee, he would be late and that he would miss a match. However, he did not deny that these events occurred or claim he received permission to be late to each practice. He “knew full well” that his high school position “would conflict” with his SHU commitments (Id. at 7).
Gagliardi thus “set forth insufficient evidence” to support a rational finding that SHU’s articulated reasons “were a pretext for retaliation.” He stated that one of his supervisors had called him a “liar,” but this had nothing to do with his discrimination complaints. None of the proffered comments “could be viewed a reflecting a retaliatory pretext.” Finally, he admitted that after his initial complaint, SHU raised his salary by forty percent and made him eligible for part-time benefits. Thus, “no rational jury could find” that SHU would not have terminated him “but-for his complaints of gender discrimination” (Id.). The Court ended with a footnote stating it “considered all of Gagliardi’s remaining arguments and conclude that they are without merit,” affirmed the judgment, and attached a bill of costs instructions sheet and application (Id.).
Gagliardi is coaching back at Branford High School. Hopefully, counsel made it clear that he had an extremely thin case before filing the Complaint, as he liable for SHU’s costs. This should be a lesson to others seeking to use the courts to gain revenge for perceived slights. Finally, other colleges may think long and hard before hiring him in the future. Some cases should not be filed.