By Gary Chester, Senior Writer
Football and basketball are akin to religion in many parts of the country. Winning is paramount, and sometimes high schools and colleges bend the rules to achieve that goal. History, and a 2022 lawsuit, illustrate that Auburn University may be a case in point.
In 2003, the Southern Association of Colleges and Schools placed Auburn on probation partly because the school’s president failed to show that he had control of the athletic program. Three years later, the NCAA found that Auburn committed secondary rules violations relating to a professor awarding high grades to football players. And in 2017, the FBI charged assistant basketball coach Chuck Person with taking bribes to steer pro prospects to an agent and financial adviser. (Auburn fired Person and the NCAA imposed sanctions on the basketball program.)
Now comes Travis Thomas, a black male whom Auburn terminated from his position as an athletic academic advisor in Spring 2021. In Thomas v. Auburn University, No. 3:2121cv00192 (M.D. Ala. 2022), Thomas alleges wrongful termination arising out of a grade-changing episode.
The Facts
Auburn hired Thomas in 2017 as an academic advisor. He was subsequently promoted to director of academic support services, and as such, he supervised the football and volleyball academic staff, counseled student-athletes, and served as a liaison between academic staff and coaching staff. Thomas served on an academic leadership team that included three white females—Kathryn Flynn, Courtney Gage, and Cathie Helmbold.
Flynn was the senior employee on the leadership team. Thomas alleges that Flynn, Gage, and Helmbold created a hostile work environment in July 2019 by openly disparaging and ridiculing his work. At one meeting, Flynn berated Thomas in front of staff, stating that “the grades for football are the worst they’ve ever been” and calling Thomas “lazy, sloppy, and last minute.”
After Flynn excluded Thomas from leadership team meetings, a white academic counselor allegedly told him, “It’s always double standards the way they treat you.” Thomas alleges that blacks were treated differently, leading to high black employee turnover, because disparaging remarks were made to them but not to white employees.
Thomas complained to the assistant athletic director and to human resources, but nothing changed. He filed a claim with the Equal Employment Opportunity Commission and his attorney corresponded with the athletic director. The issues were not resolved, and Thomas received a poor performance review three weeks after filing the EEOC charge. Thomas supplemented his EEOC claim to include an allegation of retaliation.
In December 2019, an Auburn football player was failing a class and needed a passing grade to play in an upcoming bowl game (the 2020 Outback Bowl against Minnesota). According to Thomas, Auburn officials were pressuring the professor to change the player’s grade. Thomas brought this matter to the attention of Flynn, Gage, Helmbold, and others, but he was later told that the player’s grade was changed.
A year later, Auburn officials turned the issue against Thomas. Auburn’s compliance officer in January 2021 told Thomas he violated NCAA rules by not reporting the grade-changing incident. Four weeks later, Auburn fired Thomas, who alleges that Flynn, Gage, and Helmbold did not report the incident but were not threatened or fired.
The Litigation
Thomas states three causes of action in the operative Second Amended Complaint for wrongful termination: race discrimination, racially hostile work environment, and retaliation. The court decided Auburn’s Motion to Dismiss the Second Amended Complaint on February 11, 2022.
Auburn argued that Thomas cannot prove race discrimination because he cannot show that he was treated less favorably than a similarly situated individual outside his protected class. Auburn argued that Flynn, Gage, and Helmbold are not proper “comparators” under the pleading standard enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (criterion for employer’s action must be applied alike to similar-situated members of all races).
The court denied Auburn’s motion, noting that an employment discrimination plaintiff is not required to plead a prima facie case to survive a motion to dismiss, but must adduce proof of discrimination to survive a later motion for summary judgment. “And further,” the court stated, “even if Thomas failed to identify a proper comparator, this does not necessarily doom his claim as there are other methods by which Thomas could make out a case of race discrimination. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1327-28 (11th Cir. 2011).”
As to the hostile work environment claim, the court stated that Thomas was required to allege that: “(1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his membership in the protected group; (4) it was severe or pervasive enough to alter the terms and conditions of employment and create a hostile or abusive working environment; and, (5) the employer is responsible for that environment under a theory of either vicarious or direct liability.”
The court dismissed the claim because Thomas did not allege facts sufficient to show that the alleged harassment was severe or pervasive. The court reasoned that while Thomas was publicly criticized and was called “lazy, sloppy, and last minute,” the alleged conduct, while rude and unprofessional, did not rise to the level of hostility protected by Title VII of the Civil Rights Act.
As to the retaliation claim under Title VII, the court denied the motion to dismiss even though substantial time had passed between Thomas’s EEOC filing and his termination. (The motion addressed Thomas’s termination, but not Auburn demoting him after he filed an EEOC claim.)
To prove retaliation, a plaintiff must allege that he engaged in statutorily protected conduct, suffered an adverse employment action, and that the two are connected. Auburn argued that Thomas cannot show a connection because he failed to plead that the individuals who decided to terminate him knew he had filed an EEOC claim. Auburn also asserted that an eight-month gap between the EEOC filing and the termination shows there was no connection between the two events.
The court ruled that Thomas was entitled to an inference that the decision-maker knew about the EEOC claim because Thomas’ attorney had informed both Auburn’s athletic director and the Office of General Counsel. Thomas was also entitled to an inference that his termination was retaliation even though it occurred eight months after he filed his EEOC claim. The court noted that the termination could be considered part of a continuous pattern of antagonism that began promptly after the filing. The pattern included a negative job evaluation, the removal of Thomas’ supervisory duties, continued rude conduct by the leadership team, and Flynn directing the football staff to not speak with Thomas.
The Takeaways
- Employers need to recognize the potential legal liability when they implement an adverse employment action against an employee who has been promoted but took an ethical position they did not like.
- The bar for hostile work environment claims is relatively high, and the court rightly dismissed Thomas’ claim.
- Big-time college sports coaches and administrators must respect the autonomy of professors and accept the consequences when student-athletes fail a course. (Despite the player’s eligibility, Auburn lost the 2020 Outback Bowl to Minnesota, 31-24.)
