Terrell v. Alabama State University

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

SHA’OLA TERRELL, )

)

Plaintiff, )

)

v. ) Case No. 2:22-cv-47-RAH

) [WO]

ALABAMA STATE UNIVERSITY, )

et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Sha’ola Terrell sues Defendants Alabama State University and the Board of

Trustees of Alabama State University (collectively, “ASU”) for wage discrimination

and retaliation under the Equal Pay Act, 29 U.S.C. § 206(d), and the Clarke Figures

Equal Pay Act, Ala. Code § 25-1-30, as well as for sex discrimination under Title

IX, 20 U.S.C. § 1681. The Defendants have moved for summary judgment on all

claims against them. Upon review of the record, briefs, and applicable law, the Court

concludes that the Defendants’ motion is due to be granted.

II. JURISDICTION AND VENUE

The Court has subject-matter jurisdiction over this action pursuant to 28

U.S.C. §§ 1331, 1343(a)(4), and supplemental jurisdiction over the state law claim

pursuant to 28 U.S.C. § 1367(a). The parties do not contest personal jurisdiction or

venue, and the Court finds adequate allegations to support both. See 28 U.S.C.

§ 1391.

III. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56, a district court “shall grant

summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). To demonstrate that a genuine dispute of material fact exists, a party

opposing a motion for summary judgment must cite “to particular parts of materials

in the record, including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.

P. 56(c)(1)(A). “The court need consider only the cited materials, but it may

consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). When considering

a summary judgment motion, a district court must view the evidence in the record

in the light most favorable to the non-moving party and draw reasonable inferences

from that evidence in favor of the non-moving party. Sconiers v. Lockhart, 946 F.3d

1256, 1260 (11th Cir. 2020).

IV. BACKGROUND

In July 2018, ASU sought to fill the position of Senior Associate Athletic

Director for Internal Operations. (Doc. 23-1.) It budgeted and advertised a

maximum annual salary of $75,000 for the position. (Doc. 23-21.) According to the

vacancy announcement, the position reported to the Director of Intercollegiate

Athletics, supervised the Director of Compliance, Compliance Coordinator and

other support staff, and assisted with supervising head coaches for assigned sports.

(Id.)

Then-ASU Athletic Director Jennifer Williams contacted Plaintiff Sha’ola

Terrell about her interest in the position. (Doc. 23-3 at 8.) Terrell voiced her interest,

and was later interviewed and offered the position. (Id. at 9.) Terrell accepted the

offer and began work on October 1, 2018, earning an annual salary of $75,000, as

had been advertised. (Doc. 23-5.)

From 2018 until she was terminated, Terrell also served as the Senior Woman

Administrator (SWA) for ASU’s athletic department (Doc. 23-3 at 22), a National

Collegiate Athletic Association (NCAA) designation that individual colleges or

universities may use “to promote meaningful representation of women in the

leadership and management of college sports,” (Doc. 27-7 at 1). Serving in this role

required her to attend various athletic conference and NCAA meetings, conferences,

and events, complete reports, serve on conference committees, and create

development and equity programing and plans. (Doc. 25-1 at 7–8.) Terrell received

no additional compensation for the SWA designation or the duties and

responsibilities that came with it, although ASU had budgeted $15,000 for the

designation. (Doc. 23-3 at 22; Doc. 25-2.)

In May 2021, Williams resigned effective July 16, 2021. (Doc. 23-8). ASU

then hired Dr. Jason Cable as Athletic Director effective August 16, 2021. (Doc.

23-9; Doc. 23-10). Once aboard, Dr. Cable restructured the athletics department

(Doc. 23-10), resulting in the elimination of Terrell’s position in September 2021

and the distribution of Terrell’s duties to other positions (Doc. 27-6 at 4–6), revision

of the duties of the Deputy Athletic Director position held by Terrance Jones, and

the creation of a new position titled “Senior Associate Athletic Director/Chief of

Staff,” (Doc. 23-10; Doc. 23-11; Doc. 27-5 at 1). ASU hired Jacqueline Freeman-

Johnson (a female who previously reported to Terrell) to fill the new Senior

Associate Athletic Director/Chief of Staff role. (Doc. 25-23.)

Terrell then filed this suit. In her Second Amended Complaint, she brings

claims for wage discrimination on the basis of sex under the Equal Pay Act (EPA)

(Count 1), 29 U.S.C. § 206(d), and the Clarke Figures Equal Pay Act (CFEPA)

(Count II) Ala. Code § 25-1-30; for retaliation (Count III) in violation of the anti-

retaliation provision of the Equal Pay Act; and for sex discrimination (Count IV)

under Title IX, 20 U.S.C. § 1681. The Defendants move for summary judgment on

all claims.

V. DISCUSSION

A. Wage Discrimination Claims

Terrell claims the Defendants violated the EPA and the CFEPA by paying her

less than her male co-workers for equal or greater work.

The EPA and the CFEPA generally prohibit employers from paying

employees different rates on the basis of sex for equal work on jobs the performance

of which requires equal skill, effort and responsibility, and which are performed

under similar working conditions, except where such payment is made pursuant to

(i) a seniority system; (ii) a merit system; (iii) a system that measures earnings by

quantity or quality of production; or (iv) a differential based on any other factor other

than sex. 29 U.S.C. § 206(d)(1); Ala. Code § 25-1-30(b)(4). Since the relevant

provisions of the EPA and the CFEPA are nearly identical, the Court's analysis of

Terrell’s EPA claim equally applies to her CFEPA claim. See Williams v. Ala. State

Univ., No. 2:22-cv-48-ECM, 2023 WL 4632386, at *3 (M.D. Ala. July 19, 2023).

Courts use a burden-shifting framework to analyze EPA claims. Blackman v.

Fla. Dep’t of Bus. & Prof’l Regul., 599 F. App’x 907, 909 (11th Cir. 2015) (per

curiam); Steger v. General Elec. Co., 318 F.3d 1066, 1077–78 (11th Cir. 2003). To

prevail on her wage discrimination claims, Terrell must establish a prima facie case

by showing ASU paid her less than it paid men for equal work on jobs the

performance of which requires equal skill, effort and responsibility, and that are

performed under similar working conditions. 29 U.S.C. § 206(d)(1); Smith v.

Florida A&M Univ. Bd. of Trustees, 831 F. App’x 434, 439 (11th Cir. 2020) (per

curiam). “A plaintiff therefore fails to make a prima facie case of unequal pay if the

job responsibilities of her alleged comparator were greater than her own.” Lima v.

Fla. Dept. of Children and Families, 627 F. App’x 782, 786 (11th Cir. 2015) (per

curiam) (citing Waters v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797,

799–800 (11th Cir. 1989). And “[a]lthough job titles are given some weight in the

analysis, they are not dispositive.” Id. (citing Mulhall v. Advance Sec., Inc., 19 F.3d

586, 592 (11th Cir. 1994)).

The initial burden to demonstrate comparability is “fairly strict,” and although

the jobs compared need not be identical, a plaintiff must demonstrate “that she

performed substantially similar work for less pay.” Miranda v. B & B Cash Grocery

Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992); Blackman, 599 F. App’x at 909.

See also Waters, 874 F.2d at 799 (“The standard for determining whether jobs are

equal in terms of skill, effort, and responsibility is high.”). The primary focus is on

the duties of each job, not on the individual employees holding those

jobs. See Miranda, 975 F.2d at 1533 (explaining that “the controlling factor under

the Equal Pay Act is job content” (citation omitted)). See also Arrington v. Cobb

Cnty., 139 F.3d 865, 876 (11th Cir. 1998) (“[T]he controlling factor in the court's

assessment of whether two jobs are substantially equal must be actual job content.”).

Because a prima facie case does not require a showing of an employer's

discriminatory intent, the EPA “prescribes a form of strict liability.” Miranda, 975

F.2d at 1533.

The Defendants argue that Terrell cannot make out a prima facie case of wage

discrimination because she cannot present any proper male comparators. Terrell

counters, offering four male comparators: (1) Terrance Jones, then-Deputy Director

of Intercollegiate Athletics who earned $95,000; (2) Derrick Magee, then-Senior

Associate Director for Business Affairs who earned $75,000; (3) Ron Brown, then-

Associate Director of Athletics for Academic Compliance who reported to Terrell

and earned $95,000; and (4) Lonnie Brown, who oversaw the strength and

conditioning division of internal operations during Terrell’s tenure, also reported to

Terrell, and earned $75,000.1 (Doc. 24 at 10–13.) The Defendants dispute that any

of these individuals are proper comparators.

1 To the extent Defendants’ Motion to Strike the Affidavit of Sha’Ola Terrell (Doc. 28) seeks to

strike Lonnie Brown as a comparator under the “sham affidavit” rule, the motion is due to be

denied. Although Defendants argue that Terrell did not identify Brown during her deposition but

later identified him in her affidavit filed in opposition to the Defendants’ motion for summary

judgment, Defendants did not show that the inconsistency is inherent and unexplained such that it

created a “transparent sham.” See Cooper v. Georgia Dep’t of Transp., 837 F. App’x 657, 665

(11th Cir. 2020). “[E]ven if an affidavit or declaration is ‘self-serving,’ that is not a basis for

striking it.” Id. (citing United States v. Stein, 881 F.3d 853, 854 (11th Cir. 2018) (en banc) (“We

hold that an affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create

an issue of material fact and preclude summary judgment even if it is self-serving and

uncorroborated.”)). The addition of Lonnie Brown to the list of alleged comparators does not

directly contradict Terrell’s prior testimony concerning males she believed were similarly situated

and, for the reasons that follow, Defendants will not be prejudiced. The Court thus declines to

strike Lonnie Brown as a comparator.

1. Terrance Jones

Terrell’s best alleged comparator is Terrence Jones, then-Deputy Director of

Intercollegiate Athletics. (Doc. 27-3.) Like Terrell, Jones held managerial and

supervisory duties within the athletic department, but his salary was $20,000 more

than Terrell’s salary.

Jones’s job responsibilities included assisting the Director of Intercollegiate

Athletics with the overall planning, implementation, administration, direction, and

supervision of the Athletic Department and providing daily operations management

over the athletic programs and projects, including administrative support for

coaching staff, assisting in managing the day-to-day operations of the athletics

department, directly supervising administrative staff, representing the athletics

department in contract negotiations, reviewing all contracts concerning the athletic

department, supervising coaching staff and overseeing sport programs, representing

ASU at institutional, conference, and NCAA meetings, and serving on both the

internal and external committees. (Doc. 27-4.) The position also required a master’s

degree and at least five years of relevant intercollegiate athletics experience,

“demonstrated knowledge of operations of an intercollegiate athletics program,

experience in contract negotiation and review and [ability to] work a flexible

schedule [including] evenings and weekends[.]” (Id.)

Terrell held a different position from Jones—she was the Senior Associate

Athletic Director of Internal Operations. Terrell’s position reported to the Director

of Intercollegiate Athletics, and she was responsible for supervising the Director of

Compliance, the Compliance Coordinator, and other support staff; assisting with

supervising head coaches for assigned sports; evaluating ASU’s efforts to maintain

institutional control of the athletic program; making appropriate recommendations

to the Director and Deputy Director of Intercollegiate Athletics regarding NCAA

Governance matters, as well as NCAA, Southwestern Athletic Conference and

Institutional Policies and Legislation; overseeing the day-to-day operations of the

compliance department, athletic academic advising, sports medicine and strength

and conditioning; serving as liaison for all eligibility functions and processes

including the eligibility certification process; and serving “as an athletic contact for

Authorized Eligibility Signature in the office of the Deans, Registrar, and Financial

Aid, and perform other duties as assigned.” (Doc. 23-21.) Like Jones’s position,

Terrell’s position required a master’s degree and at least five years of relevant

intercollegiate athletics experience, demonstrated knowledge of the operation of

intercollegiate athletics programs, and a flexible work schedule to include evenings

and weekends. (Id.)

Terrell notes in her comparator analysis that she also served as ASU’s Senior

Woman Administrator, a role for which ASU had budgeted $15,000 but for which

she received no compensation, and that this role added to her duties and

responsibilities. In other words, according to Terrell, she earned less than Jones for

performing far more duties and responsibilities.

ASU argues that Jones is not a proper comparator because Terrell and Jones

held different positions, did not perform substantially similar work, and Terrell did

not provide evidence showing the two positions required equal skill, effort, and

responsibility. The Court agrees. Considering the job content between the two

positions, and the “fairly strict” burden Terrell must meet to make out a prima facie

case, she has not met the “heavy burden of ‘proving substantial identity of job

functions’” between her and Jones. Waters, 874 F.2d at 799 (citation omitted).

It is true that ASU paid Jones more than Terrell, both supervised several

people, represented ASU’s athletic department, and engaged in managerial and

supervisory responsibilities within the athletic department, but “[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). See also Rollins v. Alabama

Cmty. Coll. Sys., 814 F. Supp. 2d 1250, 1315 (M.D. Ala. 2011) (holding plaintiff

cannot establish prima facie case simply based on general similarities in

position); Byrd v. Auburn Univ. at Montgomery, No. 2:05-cv-835-CSC, 2007 WL

1140424, at *9 (M.D. Ala. Apr. 17, 2007) (no prima facie case for EPA claim based

on overlapping management tasks where primary duties of position were different).

But viewing the position descriptions side by side, the Deputy Director of

Intercollegiate Athletics held much broader and different managerial and

supervisory responsibilities from the Senior Associate Athletic Director of Internal

Operations. Terrell makes little argument comparing the two jobs beyond

identifying their broad similarities. In other words, she has not sufficiently shown

her position required equal skill, effort, and responsibility to perform.

She instead primarily argues that Jones is a proper comparator because Jones

received more compensation despite the fact that Terrell took on additional

responsibilities—those additional responsibilities are not apparent in Terrell’s

argument or the record—and that ASU should have paid her the budgeted

compensation for the SWA designation. The Court fails to understand how the SWA

designation makes Jones a proper comparator since no evidence has been presented

showing that Jones ever served as the SWA or with a similar designation, or that if

he did, he was compensated for it. If anything, Terrell’s role as the SWA only further

distances Jones as a proper comparator.

Accordingly, Jones is not a sufficient comparator for purposes of making a

prima facie case of wage discrimination.

2. The remaining comparators

Terrell’s remaining comparators are Lonnie Brown, Ron Brown and Derrick

McGhee. Upon examination of the evidence concerning these three individuals,

none of them are proper comparators.

First, by Terrell’s own admission, Lonnie Brown was paid $75,000 annually

(the same as Terrell), reported to Terrell, and “had far less work and responsibilities”

than Terrell. (Doc. 25-1 at 12.) Thus, Terrell has not shown that ASU paid Lonnie

Brown more for equal work, and she has conceded their respective jobs did not

require equal skill, effort, and responsibility under similar working conditions. That

Lonnie Brown worked less for the same pay as Terrell does not mean that ASU paid

Brown more money for equal work nor does it make him an appropriate comparator.

See Blackman, 599 F. App’x at 910 (concluding that a male was not an appropriate

comparator for a female plaintiff because of dissimilarity in job responsibilities, even

though the male comparator was her subordinate, was paid more, and worked less).

Accordingly, Lonnie Brown is not an appropriate comparator.

According to Terrell, Rob Brown also reported to her and “had far less work

and responsibilities” than she did. (Doc. 25-1 at 12.) ASU did pay Brown more

than Terrell, which ASU argues was an accounting error (Doc. 23-19), but Terrell

again conceded their respective jobs did not require equal skill, effort, and

responsibility under similar working conditions. Rob Brown is therefore not an

appropriate comparator.

Finally, Terrell says Derrick Magee earned $75,000 annually and “had far less

responsibilities than [her] position” while she “had significantly more

responsibilities” compared to Magee. (Doc. 25-1 at 12–13.) Here again, Terrell has

not shown that ASU paid Magee more for equal work, and she concedes that their

jobs did not require equal skill, effort, and responsibility under similar working

conditions. Magee too is not an appropriate comparator.

Having failed to raise a genuine dispute of material fact as to whether her job

responsibilities were substantially similar to her alleged male comparators, Terrell

has not made out a prima facie case of wage discrimination on the basis of sex.

Therefore, ASU’s motion for summary judgment on her EPA and CFEPA claims is

due to be granted.

B. Retaliation

Terrell also claims that ASU retaliated against her in violation of the anti-

retaliation provision of the EPA by terminating her soon after she complained about

her compensation. ASU argues Terrell cannot establish a prima facie case of

retaliation, and, alternatively, that it had legitimate, non-retaliatory reasons for her

termination.

1. Terrell’s prima facie case

“The anti-retaliation provision of the Equal Pay Act, as incorporated into the

FLSA, makes it unlawful for an employer to discharge or otherwise retaliate against

an employee for filing a complaint or instituting proceedings related to the FLSA.”

Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1314 (11th Cir. 2018) (citing 29 U.S.C.

§ 215(a)(3)). To establish a prima facie case of retaliation, Terrell must 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. Hornsby-

Culpepper, 906 F.3d at 1314 n.9 (quoting Wolf v. Coca-Cola Co., 200 F.3d 1337,

1342–43 (11th Cir. 2000)).

There is no dispute that Terrell suffered an adverse action when she lost her

job. Instead, ASU argues Terrell did not engage in protected activity because she

did not make a complaint or institute proceedings about her wages and further that

the loss of her job was unrelated to any alleged protected activity.

“To fall within the scope of the antiretaliation provision [of Section

215(a)(3)], a complaint must be sufficiently clear and detailed for a reasonable

employer to understand it, in light of both content and context, as an assertion of

rights protected by the statute and a call for their protection. This standard can be

met, however, by oral complaints, as well as by written ones.” Kasten v. Saint-

Gobain Perf. Plastics Corp., 563 U.S. 1, 14 (2011).

Terrell contends she engaged in protected activity when she complained to

ASU officials—Dr. Cable, Jennifer Williams and Dr. Kevin Rolle—about not

receiving equal wages and not receiving compensation for her role as SWA. In her

deposition, Terrell testified that she “made [her] direct supervisor, Mrs. Williams,

aware” of “the lack of equal pay” and when Williams left ASU, Terrell said she

“complained to whom [she] thought was the next in the chain of command,” Dr.

Kevin Rolle, Chief of Staff to the ASU president. (Doc. 23-3 at 27.) Terrell claims

she made verbal complaints to superiors and that she sent a memo to Dr. Cable.

(Doc. 23-3 at 27; Doc. 25-1 at 16). No party, however, has produced that memo and

no one corroborated Terrell’s statements that she made verbal complaints concerning

wage discrimination. But viewing this evidence in the light favorable to Terrell, the

Court concludes that she has presented sufficient evidence that she engaged in

protected activity.

Having cleared that hurdle, Terrell must also present evidence of causation;

that is, that her termination was causally related to her protected activity. The causal

link element of Terrell’s prima facie case “merely [requires Terrell] to prove that the

protected activity and the negative employment action are not completely

unrelated.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)

(quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)). “[A]

plaintiff satisfies this element if [s]he provides sufficient evidence that the decision-

maker became aware of the protected conduct, and that there was a close temporal

proximity between this awareness and the adverse . . . action.” Shotz v. City of

Plantation, 344 F.3d 1161, 1180 n.30 (11th Cir. 2003) (quoting Farley v.

Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999). Mere temporal

proximity, without more, must be “very close.” Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001). One month, for example, between the protected

activity and adverse action is sufficient to infer causation based solely on temporal

proximity, but a three-month interval is not. Faircloth v. Herkel Invs., Inc., 514 F.

App’x 848, 852 (11th Cir. 2013) (citing Wideman v. Wal–Mart Stores, 141 F.3d

1453, 1457 (11th Cir. 1998) (one-month period sufficient); Thomas v. Cooper

Lighting, 506 F.3d 1361, 1364 (11th Cir. 2007) (three-month period insufficient)).

Terrell claims she made verbal complaints to Jennifer Williams on

unspecified dates, sent a written memo to Dr. Cable complaining about not receiving

pay for the SWA designation, and then was fired within days after sending the

memo. While ASU contests Terrell’s testimony on these subjects, disputes of fact

nevertheless exist concerning whether and when Terrell had these conversations,

whether and when she sent such a memo, and the temporal proximity between the

dates of these communications, including the memo, and her termination. As such,

ASU has not shown its entitlement to summary judgment due to Terrell’s inability

to make out her prima facie case of retaliation.

2. Pretext

Now “the burden of production shifts to the defendant to articulate a

legitimate, non-discriminatory reason for the adverse employment action.” Calvert

v. Doe, 648 F. App'x 925, 929 (11th Cir. 2016) (citing Bryant v. Jones, 575 F.3d

1281, 1308 (11th Cir. 2009)). ASU has met its low burden here by showing that

Terrell was terminated because of athletic department restructuring under Dr.

Cable’s new leadership. (Doc. 27-5.)

The burden therefore shifts back to Terrell who “must demonstrate that the

proffered reason was merely a pretext to mask retaliatory actions.” Calvert, 648 F.

App'x at 929. “Significantly, when it comes to retaliation claims, a plaintiff must

demonstrate that [her] participation in protected activity was the ‘but-for’ cause of

the adverse employment action.” Bailey v. Metro Ambulance Serv., 992 F.3d 1265,

1277 (11th Cir. 2021) (per curiam) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570

U.S. 338, 360 (2013)).

Terrell argues ASU’s stated legitimate reason for her termination—

restructuring—was pretext for retaliation because her position as Senior Associate

Athletic Director for Internal Operations was never, as ASU argues, actually

eliminated during department restructuring; rather, the position and responsibilities

remained the same and ASU simply hired someone else who had previously reported

to Terrell. In his Affidavit, Dr. Cable testified that after his appointment, he “started

to plan for the restructuring of the Department of Athletics” which “included the

elimination of the Senior Associate Athletic Director of Internal Operations and a

revision of the duties for the Deputy Athletic Director.” (Doc. 23-10 at 1.)

According to Dr. Cable, the “restructuring was in the form of creating a combined

position of Senior Associate Athletic Director/Chief of Staff” position. (Doc. 27-5

at 1.) Dr. Cable’s “only reason for recommending the non-reappointment of Terrell”

was “so that the new positions could be created, posted and filled based upon [his]

needs for the department.” (Doc. 23-10 at 1–2.)

Terrell has not provided sufficient evidence to show that ASU’s reason was

pretextual, nor has she shown that her complaints were the but-for cause of her

termination. Beyond conclusory allegations, Terrell has not provided any evidence

sufficient to support her argument that ASU did not eliminate the position of Senior

Associate Athletic Director of Internal Operations or that her role was filled by a

male. To the contrary, the evidence shows that the position was eliminated, the

position’s responsibilities were distributed among other positions, and a new

position was created. (Doc. 27-6 at 4–6.) At best, Terrell is simply quarrelling with

the wisdom of Dr. Cable’s restructuring decisions, and, in particular, that another

employee (a former subordinate who was female) was chosen for the new position,

and not her. As has been noted, the “employer may fire an employee for a good

reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as

long as its action is not for a discriminatory reason.” Nix v. WLCY Radio/Rahall

Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984), abrogated on other grounds by

Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. 2019) (en banc). Terrell did

not raise a genuine dispute of material fact as to pretext and therefore ASU’s motion

for summary judgment on Terrell’s retaliation claim is due to be granted.

C. Title IX

Terrell next claims ASU violated Title IX by discriminating against her on the

basis of sex. Title IX was passed as part of the Education Amendments of 1972 and

“patterned after” the Civil Rights Act of 1964. Cannon v. Univ. of Chi., 441 U.S.

677, 694–96 (1979). Subject to certain exceptions, the statute mandates: “No person

in the United States shall, on the basis of sex, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under any education

program or activity receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a).

Title IX's purpose “is to prohibit sex discrimination in education.” Adams by and

through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 811 (11th Cir. 2022) (en

banc).

Alabama district courts, including this one, have previously applied Title VII's

analytical framework to Title IX employment discrimination claims. See Williams,

2023 WL 4632386, at *8. See also Sadeghian v. Univ. of S. Ala., No. 18-00009-JB-

B, 2018 WL 7106981, at *13 (S.D. Ala. Dec. 4, 2018). Accordingly, the Court will

also apply “Title VII's substantive standards for proving discriminatory treatment

under Title IX.” Grandison v. Ala. State Univ., No. 2:20-cv-483-WKW, 2022 WL

418689, at *5 (M.D. Ala. Feb. 10, 2022).

A plaintiff may prove discrimination under Title IX by either direct or

circumstantial evidence. Williams, 2023 WL 4632386, at *8 (citing Crawford v.

Carroll, 529 F.3d 961, 975–76 (11th Cir. 2008)). A plaintiff may demonstrate

circumstantial evidence of discrimination through the McDonnell Douglas burden-

shifting framework. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 252–53

(1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

Because Terrell has not offered any direct evidence of discrimination, the Court

addresses her claim under McDonnell Douglas. See Alvarez v. Royal Atl. Devs.,

Inc., 610 F.3d 1253, 1264 (11th Cir. 2010).

Under this framework, an employee creates a presumption of unlawful

discrimination by first establishing a prima facie case. See Lewis, 918 F.3d at 1220–

21. If the plaintiff establishes a prima facie case, then the burden shifts to the

employer “to articulate a legitimate, nondiscriminatory reason for its actions.” Id. at

1221 (citing Burdine, 450 U.S. at 253). If the employer does so, then the burden

returns to the employee to prove that the employer's proffered reason is pretext for

unlawful discrimination. Crawford, 529 F.3d at 976. At all times, the ultimate

burden of persuasion remains with the plaintiff to show that the employer

intentionally discriminated against her. St. Mary's Honor Ctr. v. Hicks, 509 U.S.

502, 508 (1993). “In the summary judgment context, a plaintiff need only present

evidence from which a reasonable trier of fact could conclude an employer

intentionally discriminated against her.” Williams, 2023 WL 4632386, at *8.

Under McDonnell Douglas, “the plaintiff bears the initial burden of

establishing a prima facie case of discrimination by showing (1) that she belongs to

a protected class, (2) that she was subjected to an adverse employment action, (3)

that she was qualified to perform the job in question, and (4) that her employer

treated ‘similarly situated’ employees outside her class more favorably.” Lewis, 918

F.3d at 1220–21.

ASU does not dispute that it is subject to Title IX, that Terrell is a member of

a protected class, that she was qualified to perform her job, and that she was

subjected to an adverse employment action. Instead, ASU argues Terrell cannot

establish a prima facie case to support her sex discrimination claim for the same

reasons she could not succeed on her wage discrimination claim—she cannot

identify an appropriate comparator, nor can she show pretext. For purposes of her

Title IX claim only, the Court will assume that Terrell can present an appropriate

comparator, especially in light of the Eleventh Circuit’s “more relaxed standard of

similarity between male and female-occupied jobs” under Title VII than the EPA,

see Miranda, 975 F.2d at 1529 n.15, and therefore that she can establish her prima

facie case. Thus, the Court will move to the dispositive issue: pretext.

In the Title IX context, as it is under Title VII, ASU’s burden to produce a

legitimate, nondiscriminatory reason for its adverse employment action is

“exceedingly light.” Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th

Cir. 1983). ASU “must merely proffer non-gender based reasons, not prove them.”

Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994) (citing

Miranda, 975 F.2d at 1529). And here, ASU has carried its burden by showing that

salaries in the ASU athletic department were budgeted and advertised prior to hiring

anyone for the position and therefore those salaries were set regardless of whether

the applicant was male or female.

Once an employer articulates a legitimate, nondiscriminatory reason for its

decision, “the burden shifts back to the plaintiff to produce evidence that the

employer's proffered reasons are a pretext for discrimination.” Alvarez, 610 F.3d at

1264. The plaintiff “cannot succeed by simply quarreling with the wisdom of [the

employer's] reason,” and instead “must confront the employer's seemingly legitimate

reason . . . ‘head on and rebut it.’” Kidd v. Mando Am. Corp., 731 F.3d 1196, 1206

(11th Cir. 2013) (citations omitted). “The plaintiff can show pretext ‘either directly

by persuading the court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer's proffered explanation is

unworthy of credence,’” such that a rational trier of fact could disbelieve the

employer's proffered nondiscriminatory reason. Kragor v. Takeda Pharms. Am.,

Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (quoting Burdine, 450 U.S. at

256); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147–48 (2000).

Terrell contends that ASU’s proffered nondiscriminatory reason is pretext

because (1) the advertised salary for some positions in the athletic department were

marked “competitive” rather than identifying a specific amount, (2) that there were

discrepancies between the pay employees received as compared to the amount

budgeted for their position due to potential pay incentives earned in addition to their

budgeted salary, (3) that hiring and salary determinations could be made outside the

budgeting process by obtaining approval from ASU’s Vice President for Business

& Finance, and (4) that ASU budgeted $10,000 to $15,000 per year for the SWA

designation but Terrell did not receive such compensation.

These assertions do not confront ASU’s seemingly legitimate reason head on

and rebut it. The facts Terrell identifies do not directly show ASU’s stated reason

was pretextual by persuading the Court that a discriminatory reason more likely

motivated ASU, and nor do they do so indirectly by showing ASU’s proffered reason

was unworthy of credence such that a rational tier of fact could disbelieve it.

To show pretext indirectly, Terrell “must demonstrate ‘such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer's

proffered legitimate reasons for its action that a reasonable factfinder could find

them unworthy of credence.’” Alvarez, 610 F.3d at 1265 (citation omitted). See,

e.g., Tucker v. Fulton Cnty., 470 F. App’x 832, 835–36 (11th Cir. 2012) (per curiam)

(concluding the plaintiff showed inconsistencies and contradictions sufficient to

render the defendant’s proffered reason unworthy of credence by producing a

memorandum and email contradicting a defendant’s deposition testimony and

summary judgment affidavit). ASU’s “reason cannot be . . . ‘a pretext for

discrimination’ unless it is shown both that the reason was false, and that

discrimination was the real reason.” Hicks, 509 U.S. at 515.

Even viewing the facts in the light most favorable to Terrell, although she

disputes that the salaries for each position were set and advertised before hiring

decisions were made, the facts she presents do not show that ASU’s proffered

nondiscriminatory reason for her termination was false. Neither do the facts

demonstrate that discrimination was ASU’s real reason for her termination. In an

attempt to argue ASU’s discriminatory motive, Terrell resorts to the same argument

that ASU paid certain male employees the same as or more than her but for less

work, and that the hiring announcements and budget sheets show inconsistences in

salary determinations. She spends most of her argument squabbling with ASU’s

budgeting and hiring process, but she devotes little argument and evidence to the

position that she actually held—Senior Associate Athletic Director of Internal

Operations. And although Terrell makes a passing reference to Ron Brown, who

earned more than she did, Terrell did not present evidence tying the mere fact that

Ron Brown, or Jones for that matter, made more than her to intentional

discrimination, or other evidence showing that ASU’s explanation for Brown’s and

Jones’s higher salaries were false. Instead, she primarily rests her argument again

on the fact ASU did not pay her for the job responsibilities attendant to the SWA

designation even though ASU had budgeted for it, and in her view, that renders

ASU’s proffered reason unworthy of credence.

Terrell’s evidence does not demonstrate “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” such that she showed pretext. She

merely squabbles with the wisdom of ASU’s reasons without confronting them head

on and rebutting them. Kidd, 731 F.3d at 1206. “Absent evidence that the decision

was intentionally discriminatory, the Court will not quarrel with how the Defendants

choose to set their employees’ salaries.” Williams, 2023 WL 4632386, at *9 (citing

Kidd, 731 F.3d at 1206). See also Bell-Haynes v. Ala. State Univ., 2023 WL

2534738, at *13 (M.D. Ala. Mar. 15, 2023). And absent a showing that ASU’s

proffered nondiscriminatory reason was so inconsistent as to allow a “reasonable

factfinder [to] find them unworthy of credence,” Alvarez, 610 F.3d at 1265 (citation

omitted), Terrell has not presented evidence giving rise to a genuine dispute of

material fact as it pertains to pretext.

ASU’s motion for summary judgment as to Terrell’s Title IX sex

discrimination claim is thus due to be granted.

VI. CONCLUSION

Accordingly, it is ORDERED as follows:

(1) The Defendants’ Motion for Summary Judgment (Doc. 21) 1s

GRANTED;

(2) The Defendants’ Motion to Strike the Affidavit of Sha’Ola Terrell

(Doc. DENIED as moot in part and DENIED on the merits in partas set forth

herein;

(3) PlaintiffSha’Ola Terrell’s claims against Defendants are DISMISSED

with prejudice;

(4) A separate judgment will issue.

DONE on this the 30th day of October 2023.

Cbd.

UNITED STATES DISTRICT JUDGE

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