For a second time, a federal judge from the Middle District of Alabama has granted Alabama State University (ASU)’s motion to dismiss a discrimination claim brought by a former athletics administrator, Sha’ola Terrell.
The initial ruling by the judge, highlighted below, was vacated last December by the 11th U.S. Circuit Court of Appeals.
In the latest ruling, the district court noted that: “Terrell failed to establish that ASU paid different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. Terrell therefore has failed to make out a prima facie case for wage discrimination on the basis of sex under either the Equal Pay Act of 1963 (EPA) or Clarke-Figures Equal Pay Act (CFEPA). As a result, ASU’s motion for summary judgment is due to be granted as to these two claims.”
By way of background, Gary Chester, Senior Writer for Hackney Publications, wrote about the first ruling in the case in the district court last year. His article follows below:
“Some critics have assessed the EPA as a failure because of loopholes, inadequate remedies, and adverse court rulings. Is Terrell v. Alabama State University, No. 2:22-cv-47 (M.D. Ala. October 30, 2023) an example of the EPA failing to protect a female employee?
The employee in the case was Terrell, whom ASU hired in 2018 as its Senior Associate Athletic Director of Internal Operations at an annual salary of $75,000. Three years later, ASU constructively or actively terminated her for objecting to her pay structure. Terrell accused ASU of violating the EPA (29 U.S.C. §206d) through wage discrimination on the basis of sex and by retaliating against her after she complained. Terrell also sued for gender discrimination under Title IX (20 U.S.C. § 1681).
More Work, Less Pay
The facts are not wholly unusual. Terrell reported to the Director of Intercollegiate Athletics, supervised the Director of Compliance and others in the Athletic Department, and assisted with supervising head coaches. But Terrell was also tasked with another position: Senior Woman Administrator (SWA). In that capacity, Terrell was required to attend athletic conference and NCAA meetings and fulfill related duties to promote meaningful representation of women in the management of college sports.
Although ASU budgeted $15,000 for the SWA designation, the university did not add this benefit to Terrell’s base salary. She alleged that ASU fired her just days after she complained verbally and in writing about not being paid for the position.
Terrell’s primary claim was that ASU violated the EPA and a similar Alabama statute by paying her less than her male co-workers for equal or greater work. Both laws generally prohibit employers from paying employees different rates on the basis of sex for equal work on jobs requiring equal skill, effort, and responsibility that are performed under similar working conditions. Terrell had the initial burden of showing that ASU paid her less than it paid men for performing comparable jobs under similar working conditions.
ASU argued on a motion for summary judgment that Terrell could not make out a prima facie case of wage discrimination because she did not present any proper male comparators. Terrell offered four male comparators, the strongest of which was Terrance Jones, the Deputy Director of Intercollegiate Athletics who earned $95,000. Both Terrell and Jones held managerial and supervisory duties within the athletic department. Both positions required a master’s degree and at least five years of relevant intercollegiate athletics experience.
The Court found that the two jobs were not comparable because the Deputy Director of Intercollegiate Athletics (Jones) held broader and different responsibilities from the Senior Associate Athletic Director of Internal Operations (Terrell). The Court stated that “[b]road similarities between a small percentage of the comparator’s job and Plaintiff’s job…are inadequate.” (Fail v. Univ. of Ala. Ophthalmology Serv. Found., No. 2:16-cv-01393, 2018 WL 3495862, at 6 (N.D. Ala. July 20, 2018).
Terrell argued that Jones was a proper comparator because Jones received greater compensation even though Terrell took on the SWA responsibilities. But the Court found that the SWA position distances the two jobs because Jones never served as the SWA or had a similar designation.
The remaining three positions were held not comparable to Terrell’s job. While the pay for males in those jobs was equal to or greater than Terrell’s compensation, the jobs did not require equal skill, effort, and responsibility that are performed under similar working conditions.
Did ASU Retaliate Against Terrell?
The EPA makes it unlawful for employers “to discharge or otherwise retaliate against an employee for filing a complaint or instituting proceedings relating to the FLSA [Fair Labor Standards Act].” Under the retaliation provision of the EPA, Terrell needed to show that “(1) she engaged in a statutorily protected activity; (2) she suffered an adverse action; and (3) the adverse action was causally related to her protected activity.”
Terrell contended that she engaged in a protected activity when she complained to ASU officials about not receiving equal wages and compensation for her role as SWA, and her termination shortly thereafter established causation. ASU denied that Terrell complained to university officials, but the court ruled that the plaintiff was entitled to favorable inferences of fact on a motion for summary judgment.
Even if Terrell had complained, the court ruled there was insufficient evidence to show that ASU’s proffered reason for terminating her “was merely a pretext to mask retaliatory actions.” During the relevant time period, ASU hired a new athletic director who decided to restructure the department. The restructuring included the elimination of Terrell’s position, distribution of the duties of the position, and creation of a new position. A female employee was chosen over Terrell to fill the new position, so there was no gender discrimination. The court noted that an employer may fire an employee any reason “so long as its action is not for a discriminatory reason.”
The court also rejected Terrell’s Title IX claim because ASU showed that salaries in the athletic department were budgeted and advertised prior to hiring anyone for a position, so the compensation was set regardless of whether the applicant was male or female. Terrell argued that there were exceptions to the policy, but she was unable to establish that discrimination accounted for any difference in the salaries paid to male employees and her salary.
The Takeaway
The lack of documentation in the case is perplexing. If ASU was displeased with Terrell’s performance, it needed to document specific deficiencies. Similarly, Terrell needed to follow-up her verbal complaints with emails to make a record (though she claimed to have sent memos).
While it was unfair to saddle Terrell with the SWA position without paying her an additional $15,000, it is not unusual for employers to add duties to one’s job without additional compensation. This is poor management that can lead to a low employee retention rate, but it may have been closer to fraud or breach of contract rather than discrimination. Terrell needed to show that ASU treated males in similar circumstances differently. As the court observed, Terrell was unable to show inconsistencies showing pretext but “merely squabbles with the wisdom of ASU’s reasons without confronting them head on and rebutting them.”
That being said, from a business viewpoint ASU probably could have paid Terrell the additional $15,000, avoided the fees from the lawsuit, and come out ahead.”
Back to the Latest Ruling by the District Court
Returning to the latest ruling, the court noted that “even if Terrell had made a prima facie case for wage discrimination under both the EPA and CFEPA, ASU is still due summary judgment because of ASU’s affirmative defense—it relied on a ‘factor other than sex’ in determining Terrell’s salary. Baker, 94 F.4th at 1317 (internal quotation marks omitted) (quoting Brock v. Ga. Sw. Coll., 765 F.2d at 1036).
“Specifically, ASU argues that Terrell’s salary was not based upon gender because ‘the salary was pre-determined and advertised based upon ASU’s budget.’ (Doc. 44 at 7.) That is, the position was budgeted and advertised at $75,000, that males and females equally could apply for it, and that Terrell applied for and accepted the position knowing that it paid $75,000 annually.
“The ‘any factor other than sex’ affirmative defense to a wage discrimination claim under the EPA is a ‘broad’ and ‘catch-all exception.’ Corning Glass Works, 417 U.S. at 198, 204. Factors ‘other than sex’ include (1) ‘unique characteristics of the same job;’ (2) ‘an individual’s experience, training, or ability;’ or (3) ‘special exigent circumstances connected with the business.’ Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988). ‘So long as subjective business justifications . . . are not overly subjective so as to render them incapable of being rebutted, they are legitimate factors to be considered.’ Schwartz v. Fla. Bd. of Regents, 954 F.2d 620, 623 (11th Cir. 1991) (per curiam) (citation omitted).
“The Court finds that ASU has sufficiently met the ‘any factor other than sex’ affirmative defense, a defense for which it bears the burden of proof. Corning Glass Works, 417 U.S. at 196-97. ASU’s business justifications “are not overly subjective,” Schwartz, 954 F.2d at 623, because Terrell’s salary was pre-determined (before Terrell even applied for it) and budgeted, was publicly advertised for any prospective applicant to see—males and females alike—and Terrell applied for and accepted the position knowing that it paid only $75,000.4 In fact, two of Terrell’s proposed male comparators—Brown and Magee—also held positions paying the same pre-determined, budged salary amount of $75,000. As such, ASU is also entitled to summary judgment on Terrell’s wage discrimination claims under the EPA and CFEPA because it has sufficiently met the ‘any factor other than sex” affirmative defense. Baker, 94 F.4th at 1317 (internal quotation marks omitted) (quoting Brock v. Ga. Sw. Coll., 765 F.2d at 1036).”
Sha’ola Terrell v. Alabama State University, et al.; M.D. Ala.; Case No. 2:22-cv-00047-RAH; 2/16/25
