Judge Backs University in Lawsuit Involving Coach and Sexual Orientation
A federal judge from the Eastern District of Arkansas granted summary judgment to Arkansas State University in a case in which the school’s former softball coach accused it of gender and sexual orientation discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
In so ruling, the court found that the plaintiff failed to demonstrate that similarly situated male coaches were treated more favorably than she was.
Plaintiff Gidget Pambianchi was an employee of defendant Arkansas Tech University (ATU) from July 2005 until ATU terminated her employment in April 2012. During her employment, ATU’s athletic director, Steve Mullins, was Pambianchi’s direct supervisor.
ATU entered into a new one-year contract with Ms. Pambianchi each year between 2006 and 2011. Pambianchi’s 2011-2012 contract includes an addendum by which she agreed to perform her duties and personally comport herself at all times consistent with good sportsmanship and “with the high moral, ethical and academic standards of the Athletic Department and the University.”
The addendum further provides that Pambianchi agreed, at all times, to “exercise due care that all personnel and students under . . . her supervision, control or authority, comport themselves in a like manner.” Lastly, the addendum provides that she agreed at all times to comply with and obey all federal and state laws, ATU regulations, and governing athletic rules and would exercise due care that all personnel or students under her supervision, control, or authority also comply with those laws, regulations, and rules.
ATU’s sexual harassment policy states in part that sexual harassment is a violation of the law and ATU policy and will not be tolerated.
The policy further provides that what constitutes sexual harassment will vary with the particular circumstances of each case but “may be generally described as repeated and unwanted sexual behavior, such as physical contact and verbal comments or suggestions that adversely affect the working or learning environments of others.” The policy lists examples of sexual harassment, including: “Use of sexual jokes, stories, analogies or images which are not related to the subject of the class or work situation” and “Sexually suggestive jokes, comments, e-mails, or other written or oral communications.”
The sexual harassment policy establishes a procedure for handling complaints of sexual harassment and assigns the task of investigating complaints to the ATU Affirmative Action Officer, who was Jennifer Fleming at the time of the incidents at issue in this lawsuit. The policy provides two options for reporting and resolving matters involving alleged sexual harassment: an informal resolution process and a formal complaint process.
Pambianchi did not dispute the existence of ATU’s sexual harassment policy, but she repeatedly contends, in her summary judgment papers, that the policy is invalid based on her allegations of the inconsistent and erroneous application of the policy.
The underlying complaints against the plaintiff centered on allegations that she often discussed her own sexual practices and those of others with her assistant coach and members of her team.
Mullins allegedly discussed these complaints with Fleming, ATU’s general counsel, and others to inquire whether the conduct described in the complaint and subsequently admitted to Pambianchi was a violation of ATU’s sexual harassment policy; and that they advised Fleming that Pambianchi’s conduct violated ATU’s sexual harassment policy under their interpretation of the policy.
The plaintiff challenged this, claiming that the sexual harassment policy is invalid and that any interpretation of the policy was erroneous.
Mullins claimed that he understood and was advised that not terminating Pambianchi could expose ATU to liability in the event of another and more serious incident of sexual harassment. On April 3, 2012, he informed her that she must either resign or be terminated. Pambianchi declined to resign, and she was fired.
While Mullins informed Pambianchi that she was being terminated for violating the sexual harassment policy and that no other matters were referenced and no other reason was given for her termination, the plaintiff challenged this and claimed this reason was pretext for discrimination.
The plaintiff exhausted her administrative remedies. The president of the university informed her in a May 11, 2012 letter that she “was terminated for cause due to the fact that she: failed to supervise and monitor adequately her employees, graduate assistants, and student athletes; engaged in conduct that reflected unfavorably on ATU; made inappropriate comments of a sexual nature to employees and student athletes she supervised which constituted a violation of ATU’s sexual harassment policy; failed to exercise adequate control and supervision of the women’s softball team; and failed to exercise good judgment and decision making.” The ATU Board of Trustees voted on June 18, 2012 to affirm his decision. Pambianchi sued. The defendants moved for summary judgment.
To establish her Title VII discrimination claim, the court noted that Pambianchi “can either provide direct evidence of discrimination or create an inference of unlawful discrimination under the three-step analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Bone v. G4s Youth Servs., LLC, 686 F.3d 948, 953 (8th Cir. 2012).”
The court first addressed whether Pambianchi presented direct evidence of discrimination. It was reluctant to believe her allegation that the AD made comments that she “would not be under so much trouble if you had a short haircut and you were 40 years old. But because you’re a blond and because you’re not ugly, you become a threat to parents and you become a threat to these kids. I mean, these kids could be attracted to you. You could be attracted to them. These parents look at you like you could be their daughter. And you’re gay. And that’s not accepted and—not in our society. And that’s the reason why you’re picked on.” He said, “If you were 40 years old with a short haircut, nobody would mess with you.
“… Even if this conversation occurred, ATU contends that Pambianchi’s description of this conversation in her declaration and summary judgment papers contradicts the description she offered in her deposition, which ATU says is a ‘sham’ attempt to create an issue of fact.”
After finding for the defendants on this point, the court turned to the McDonnell Douglas analysis.
“ATU has articulated a legitimate, nondiscriminatory reason for terminating Pambianchi’s employment,” wrote the court. “Therefore, Pambianchi must prove that the proffered justification is merely a pretext for discrimination. Bone, 686 F.3d at 955.”
The plaintiff failed to meet this threshold on multiple fronts.
“Pambianchi has failed to establish a genuine issue of material fact regarding pretext,” wrote the court. “Further, even if she could discredit ATU’s asserted reason for terminating her, she also is required to demonstrate that the circumstances permit a reasonable inference of discriminatory animus. Gibson v. Am. Greetings Corp., 670 F.3d 844, 856 (8th Cir. 2012). She fails to do so.”
In addition, the plaintiff failed to demonstrate pretext by showing that “she and the potential comparators she identifies were similarly situated in all relevant respects. … The employees ‘used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.’ Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011) (quoting Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir. 2004)).
“Pambianchi has come forward with no suitable comparators at the pretext stage. There is no discussion in the record evidence of an employee or employees who dealt with the same supervisor, were subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstance. Because she identifies no suitable comparators, Pambianchi has failed to establish through comparator evidence a genuine issue of material fact regarding pretext.”
Gidget Pambianchi v. Arkansas Tech University; E.D. Ark.; Case No. 4:13-cv-00046-KGB, 2015 U.S. Dist. LEXIS 38625; 3/26/15
COUNSEL: (for plaintiff) Anthony Bryce Brewer, LEAD ATTORNEY, Bryce Brewer Law Firm, LLC, North Little Rock, AR; James M. Scurlock, Wallace, Martin, Duke & Russell, PLLC, Little Rock, AR, Michael Muskheli, Muskheli Law Firm, P.A., Little Rock, AR. (for defendant) Patrick E. Hollingsworth, LEAD ATTORNEY, Arkansas Attorney General’s Office, Little Rock, AR.
