By Brian G. Nuedling, of Jackson Lewis P.C.
Congress recognized the possibility of retribution when it the passed Title IX, the portion of the Education Amendments of 1972[1] that prohibits gender discrimination in education programs or activities that receive federal funding. Courts, too, have looked to protect those who participate in funding decisions or other keys aspects of program operation from jobs losses or other outcomes that might be viewed as little more than revenge.
But courts also have recognized that claims of retaliation should be held to a prosecution standard befitting the seriousness of the allegation. A Texas federal court took that approach when a former employee of a local college alleged that he had been dismissed for defending cutbacks in women’s sports.
In Holmes v. Texas College, the United States District Court for the Eastern District of Texas sorted through key procedural and factual issues that addressed the burden of proof in Title IX retaliation claims. But the court also made clear that plaintiffs claiming Title IX retaliation must be able to do more than simply bring the allegation.
Plaintiff Sues for Wrongful Discharge
In Holmes, Plaintiff Glen Holmes sued Texas College, alleging that the school violated Title IX when it terminated his employment.[2] Holmes alleged that the school retaliated after he complained about a funding disparity among the school’s athletic programs. Holmes alleged that he was fired after he spoke out about a reduction in funding for the women’s softball team that he believed to be unfair when compared with the level of financial support for the men’s football team. Holmes challenged the discharge by filing suit in the United States District Court for the Eastern District of Texas, alleging that the termination amounted to unlawful retaliation under Title IX.
In response, Texas College brought a motion for summary judgment, supported through the declarations of two college officials, both of whom disputed Holmes’ version of what took place at a meeting on August 23, 2018. Holmes alleged that his complaints during this meeting cost him his job. The two college officials, however, remembered things differently. They stated that the discussion had not centered around whether the athletic programs were on a level playing field financially. They also disputed Holmes’ contention that he had complained of unfair treatment among the men’s and women’s teams at Texas College. Rather, the officials stated, the topic of discussion at the meeting was Holmes’ decision to offer scholarships to 27 softball players without approval from the school’s athletic director. The declarations stated that participants at the meeting discussed whether the lack of approval would mean that the scholarship offers would have to be rescinded because they would be deemed unauthorized.
In further support of its motion for summary judgment, Texas College cited deposition testimony by Holmes which indicated that he agreed with the decision to revoke the scholarship offers. Of the meeting at issue, Holmes testified: “I never said, ‘Oh, y’all can’t do them girls like that. Don’t do that.’ I was totally acceptable. … So I was in total agreement with the fact that they [were] going to make that drastic cut to those girls.”
Holmes’ response to the dispositive motion focused exclusively on his own declaration, which stated that he had, in fact, raised Title IX concerns during the meeting. As set forth in the declaration, Holmes stated the following: “On August 23, 2018, I met with the Athletic Director and Dr. Marshall-Biggins in which I expressed Title IX concerns regarding the reduction in the amount of women’s softball scholarships vis-à-vis the scholarships awarded in the football program.” The declaration was sworn on October 9, 2019, after Texas College had filed its motion.
Issues Before the Court
The central issue before the court, of course, was whether Texas College had proved the lack of a genuine dispute as to any material fact, such that it would be entitled to judgment as a matter of law. Tucked within the Rule 56 analysis, however, were two corresponding issues: The retaliation prong of Title IX and the “sham-affidavit” rule, which precludes a non-movant from creating an issue of fact through a declaration that conflicts with the substantive assertions of the opposing party.
As noted by the Holmes court, Title IX creates a private cause of action when an individual has complained of gender discrimination.[3] To prevail on a retaliation claim, a plaintiff must show that (1) he engaged in activity protected by Title IX; (2) he suffered an adverse employment action; and (3) There is a causal nexus between the protected activity and the adverse employment decision. In Jackson v. Birmingham Board of Education,[4] the United States Supreme Court held that a person can be subjected to unlawful retaliation even if the complaint of sex discrimination involved others.
Given the motion for summary judgment, however, the focus for the Holmes court was the substance of Holmes’ declaration. Texas College argued that it was conclusory and insufficient to create a factual dispute. The school further contended that it should be disregarded under the sham-affidavit rule because it contradicted Holmes’ deposition testimony.
In working through the analysis, the court cited the Fifth Circuit’s holding in Bargher v. White[5]for the principle that a non-movant’s “self-serving sworn statement” can create a genuine issue of material fact, and thereby defeat a motion for summary judgment, provided that the declaration is not based on “conclusory allegations, speculation, and unsubstantiated assertions.” Further, the court noted that under the sham-affidavit rule, a party may not manufacture a factual dispute,[6] and that a declaration which contradicts previous testimony should be disregarded unless the change in position is supported by “sufficiently persuasive reasons.”[7]
The Court’s Holding
As to Texas College’s contentions that Holmes had issued a conclusory declaration and had violated the sham-affidavit rule, the court found in the school’s favor in both instances.
First, the court viewed Holmes’ statement that he had “expressed Title IX concerns” as “conclusory and unsubstantiated by any detail,” as the summary-judgment record lacked any evidence of what Holmes had specifically said. The court concluded, therefore, that it was not possible to review his complaint to determine whether it fell within the protections of Title IX. Moreover, the court concluded that Holmes’ declaration was insufficient to create a disputed issue of fact. Noting that the retaliation provision of Title IX safeguards complaints related to gender inequality (and not necessarily complaints concerning women’s sports),[8] the court observed that Holmes’ objection to the scholarship cuts was never put in writing, and that its lack of specific detail meant that it presented more like a legal conclusion of law that could not be construed as evidence and could not support a finding that retaliation had occurred.
Second, the court held that the declaration had violated the sham-affidavit rule because it directly contradicted Holmes’ deposition testimony and offered no explanation for the change in position. For this reason as well, the court found that Holmes’ declaration was insufficient to show the presence of a factual dispute on an essential element of his claim.
On the basis of those findings, the court granted Texas College’s motion for summary judgment.
Takeaways from the Decisions
The Holmes decision makes clear that Title IX plaintiffs cannot bring retaliation claims simply as a matter of course. While the law provides substantive protection for raising objections related to gender inequality, a plaintiff cannot rely solely on a generalized description of what took place. As in Holmes, and when faced with a motion for summary judgment, a court will scrutinize a plaintiff’s claim for some indication that a factfinder could plausibly draw a causal link between a Title IX complaint and an adverse employment action. The Holmes decision suggests that the devil will be in the details, and that a plaintiff will be held to more than simply assuming a connection between a Title IX incident and a discharge or other employment consequence.
Moreover, the Holmes review of conclusory allegations and sham affidavits shows that courts will take Title IX retaliation claims seriously and will give them their due. But for plaintiffs bringing little more than a theory, the lesson from Holmes is that courts will not accept a claim of retaliation at face value and will insist on both a plausible claim for relief and a consistent story.
[1] See 20 U.S.C. § 1681.
[2] See Holmes v. Texas Coll., No. 6:18-cv-004395, 2019 U.S. Dist. LEXIS 196240 (E.D. Tex. Nov. 12, 2019).
[3] See 34 C.F.R. § 100.7(e).
[4] 544 U.S. 167, 173 (2005).
[5] 928 F.3d 439, 445 (5th Cir. 2019).
[6] The court cited Doe ex. rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000).
[7] See EBC, Inc. v. Clark Bldg. Sys., 618 F.3d 253, 270 (3rd Cir. 2010).
[8] The court cited Minnis vs. Bd. of Supervisors, 620 F. App’x 215, 222 (5th Cir. 2015).
