By Russell C. Garner
Dianthia Ford-Kee was appointed as Mississippi Valley State University’s (MVSU) Athletic Director on November 18, 2013, and was the first woman appointed to the role in the University’s history. Of note, Ford-Kee’s hiring was not contractual, but rather that of an at-will employee of MVSU. Prior to her appointment, the University’s athletic department had a history of NCAA noncompliance issues as well as a history of losing. However, during her nine-year tenure, the University won Southwestern Athletic Conference (SWAC) division championships in both cross country and women’s soccer. While Ford-Kee claimed MVSU enjoyed academic success among many student athletes under her guidance, the overall program continued to hold an overall losing record.
During her 2020-2021 performance review, which noted the lack of success by University athletic teams, Ford-Kee still received ratings of either “exceptional” or “exceeding expectations” in all areas. On February 8, 2022, University President Jerry Briggs requested a meeting with Ford-Kee, who – based on information received earlier in the day – presumed the purpose of the meeting was to discuss issues involving men’s basketball coach Lindsey Hunter. However, Briggs informed Ford-Kee during the meeting that she would be placed on administrative leave, effective March 1, 2022, and that her final day of employment would be March 31, 2022. Following a national search, MVSU hired Hakim McClellan, a male approximately 27 years younger than the 62-year-old Ford-Kee, to fill the vacancy. The University insisted that her termination was due to poor job performance based on the athletic program’s win/loss record during her tenure.
On August 30, 2022, Ford-Kee filed an EEOC complaint against MVSU. Six days later, Briggs submitted an employee evaluation report of Ford-Kee to the University’s human resources office, noting that Ford-Kee was no longer employed, along with ratings of “Improvement Necessary” under “work results” and “Unsatisfactory” regarding “creativity and innovation.” In its response to Ford-Kee’s complaint dated February 9, 2023, the University claimed that Ford-Kee’s reason for termination was the underperformance of teams under her leadership. However, Ford-Kee alleged that she first learned this rationale for her termination upon receiving a copy of the EEOC response and that she was unaware that her own job performance was measured by the teams’ performance.
Ford-Kee subsequently filed suit on June 12, 2023 against Mississippi Valley State University and the Mississippi Board of Trustees of State Institutions of Higher Learning (IHL). She brought forward two claims, alleging that her termination was due to age and gender bias. The University and IHL attested that Ford-Kee was terminated solely due to poor performance of athletic teams and requested a motion for summary judgment.
Title VII Gender Discrimination
Ford-Kee’s first claim was that of gender discrimination under Title VII of the Civil Rights Act of 1964, relying on circumstantial evidence to establish the claim. Title VII provides that it is unlawful “for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.”
Using the McDonnell Douglas framework – used to prove discrimination in employment decisions when lacking direct evidence, Ford-Kee demonstrated that she met all four factors of a prima facie case for gender discrimination: (a) that she belongs to a protected class, (b) that she was qualified for her position, (c) that her termination adversely affected her, and (d) that she was replaced by someone outside of her protected class. The University was unable to dispute that she satisfied these elements, instead arguing that her reason for termination was due to poor performance based on the underperformance of its athletic teams during her stint.
Ford-Kee presented circumstantial evidence arguing pretext and discriminatory intent, in addition to evidence pointing to her gender as a motivating factor in her dismissal. She argued four reasons to question the University’s justification: (a) the teams’ losing records were not previously attributed to her job performance; (b) the University’s reasoning was revealed and documented post-termination and post-EEOC charge; (c) inconsistencies present in the University’s proffered reason after litigation commenced; and (d) contradictory statements in the University’s EEOC position statement and Briggs’ testimony regarding his informing Ford-Kee of the reason for her firing. Considering this evidence, the Court questioned the sincerity of the University’s stated reason for Ford-Kee’s dismissal, noting:
While there is a dispute as to when Ford-Kee was informed that she was terminated for poor work performance, an unfavorable employee evaluation documented by the decision-maker, Briggs, only after Ford-Kee had filed her EEOC charge, certainly casts doubt on the University’s proffered reason.
The University argued that Ford-Kee failed to present evidence of Briggs making any comment regarding her gender and that she did not otherwise establish gender as a motivating factor in Briggs’ decision. Briggs testified that he was told by “hundreds” of unnamed persons that he should terminate Ford-Kee.
The Court, while noting that Ford-Kee had not presented specific evidence that Briggs himself commented about her gender, pointed out that Briggs was influenced by the biases of others in his decision and that a jury could infer his decision was based on discriminatory animus. As such, summary judgment was not granted, as genuine issues of material fact remained in the case.
29 U.S.C. § 623(a)(1): ADEA Age Discrimination
Ford-Kee also made an Age Discrimination in Employment Act (ADEA) discrimination claim against the University, alleging that she was unlawfully discriminated against because of her age at the time of her termination. Under the ADEA, an employer cannot “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” In essence, the ADEA prohibits discrimination in hiring, promotion, discharge, and other employment decisions as it relates to age. To prevail on such a claim, a plaintiff must show that age was a “but for” case of termination, more than simply proving age as a motivating factor in the decision.
By meeting the three elements present in her Title VII claim, along with showing that her replacement – McClellan – was much younger than her at the time of her termination, Ford-Kee satisfied elements needed for a credible ADEA complaint. McClellan was approximately 27 years Ford-Kee’s junior at the time. Meanwhile, the University continued to insist that its reason for terminating Ford-Kee was the underperformance of its athletics teams and not due to anything age-related.
According to O’Connor v. Consol. Coin Caterers Corp. (1996), the replacement of a worker by someone substantially younger may indicate a strong prima facie case for discrimination. The Court found that, given the substantial age gap between Ford-Kee and McClellan, along with the previously discussed evidence, a jury could infer that the plaintiff was terminated because of her age. The Court further found that Ford-Kee’s strong prima facie case, in combination with the sufficient evidence questioning the validity of the University’s stated reason for her termination created a genuine issue of material fact on whether age was the cause of termination. As a result, the Court denied plaintiff’s motion for summary judgment.
Conclusion
In conclusion, the court granted in part and denied in part the University’s Motion for Summary Judgement. Ford-Kee was granted a trial against Mississippi Valley State University on her Title VII and ADEA discrimination claims based on wrongful termination. All other claims were dismissed with prejudice, including claims against IHL.
Russell C. Garner is a Sport Management doctoral student at Troy University. He currently serves as Director of Athletics Media Relations at Arkansas State University in Jonesboro, AR, where he resides.
References
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).
Ford-Kee v. Miss. Valley State Univ., Civil Action 4:23-cv-107-SA-JMV (N.D. Miss. Aug. 2, 2023).
O’Connor, J. v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).
Owens v. Circassia Pharmaceuticals, Inc., 33 F.4th 835 (5th Cir. 2022).
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
