Cummings v. Tex. Southern Univ.

CLAUDE CUMMINGS, III, Plaintiff,

v.TEXAS SOUTHERN UNIVERSITY, Defendant.

CIVIL ACTION NO. H-10-1096

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: May 6, 2011.

MEMORANDUM OPINION AND ORDER

Claude Cummings, III brings this action against Texas Southern University alleging that he was terminated in retaliation for complaining about Texas Southern University's noncompliance with title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Pending before the court is Defendant Texas Southern University's Motion for Summary Judgment and Brief in Support (Docket Entry No. 12). For the reasons explained below, Texas Southern University's motion will be granted.

I. Factual and Procedural Background

A. Underlying Facts

In 2003 Texas Southern University ("TSU") hired Claude Cummings, III as head coach of the women's basketball team.¹ Cummings' direct supervisor was TSU's then-Athletic Director Alois Blackwell.² During Cummings' tenure as head coach, which spanned nearly five seasons, TSU's women's basketball program struggled to find success on the court. As demonstrated below, with Cummings as coach the program failed to achieve a winning season and accumulated a total win-loss record of 23-87:

• 2003-2004 Season: 10 wins, 17 losses

• 2004-2005 Season: 5 wins, 23 losses

• 2005-2006 Season: 5 wins, 22 losses

• 2006-2007 Season: 5 wins, 22 losses

• 2007-2008 Season: 8 wins, 16 losses³

Between 2004 and 2007 Cummings was periodically told by then-Athletic Director Alois Blackwell that he needed to win more games.⁴

The women's basketball program's academic record was also subpar while Cummings was head coach. For each of Cummings' five seasons his team's Academic Performance Rating ("APR") — an NCAA-compiled statistic that purports to measure student-athletes'progress towards graduation⁵ — fell below the NCAA Division I average.⁶

In 2007 and 2008 TSU made several significant changes in key leadership positions, particularly within the athletic department. Ronnie Courtney, the men's basketball coach, was terminated in mid-2007 at the end of his sixth season.⁷ Coach Courtney had posted four losing seasons in a row, and his teams' APRs were below the Division I average from 2003 to 2007.⁸ Similarly, Steve Wilson, the head football coach, was terminated in late 2007 after posting four straight losing seasons and a team APR that was consistently below the NCAA Division I average.⁹

In early 2008 John Rudley was appointed President of TSU.¹⁰ Shortly after Rudley was appointed he removed Alois Blackwell asAthletic Director and installed Johnnie Cole, the new football coach, as Interim Athletic Director.¹¹ On February 27, 2008, Cole terminated Cummings as head coach of the women's basketball team because of Cummings' poor win-loss record, his teams' poor APR records and his players' failure to attend study hall, and Cole's desire to take the program in a different direction.¹² In sum, within a span of twelve months TSU appointed a new president, replaced its athletic director, and terminated the head coaches of the football, men's basketball, and women's basketball teams.

Approximately one week before Cummings was terminated he met with Interim Athletic Director Cole to discuss what Cummings perceived to be inequities between the men's and women's athletic programs at TSU.¹³ Cummings complained that TSU had run afoul of the requirements of Title IX by (1) permitting the men's basketball team to hire more assistant coaches than the women's basketball team, (2) requiring Cummings, but not the coaches of the men's football and basketball teams, to teach classes to earn his full coaching salary, (3) not hiring either a Title IX Coordinator or a Senior Women's Administrator, and (4) providing the men's basketball team larger operating and recruiting budgets than thewomen's team.¹⁴ Cummings had lodged similar complaints from 2004 to 2007 with former Athletic Director Alois Blackwell and several other officials within the athletic department.¹⁵

B. Procedural History

Cummings filed this action in state court on February 26, 2010, and TSU removed the action on the basis of federal-question jurisdiction on April 5, 2010.¹⁶ Cummings alleges that TSU retaliated against him "for complaining about the inequalities of [TSU's] women's athletic program as compared to the men's program" in violation of "Title IX of the Education Amendments of 1972 and the implementing regulation at 34 C.F.R. Part 106 (2008)."¹⁷ TSU moved for summary judgment on January 28, 2011, on grounds that there is no evidence for a reasonable jury to conclude that Cummings' termination was in retaliation for Cummings' Title IX complaints.¹⁸ Cummings responds that there is a genuine issue ofmaterial fact regarding TSU's retaliatory motive, evidenced by the short period of time between Cummings' meeting with Cole and Cummings' termination.¹⁹

II. Analysis

A. Applicable Law

1. Summary-Judgment Standard

Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. Fed. R. Civ. P. 56(a). Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511 (1986). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552 (1986).

A party moving for summary judgment "must 'demonstrate the absence of a genuine issue of material fact, ' but need not negatethe elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 106 S. Ct. at 2553-54). If the moving party meets this burden, Rule 56(c) requires the nonmovant to show that specific facts exist over which there is a genuine issue for trial. Id. (citing Celotex, 106 S. Ct. at 2553-54). A party asserting that a fact is genuinely disputed must support the assertion by either (1) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, admissions, and interrogatory answers or (2) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A)-(B). In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 2110 (2000).

2. Title IX of the Education Amendments of 1972

"Title IX prohibits sex discrimination by recipients of federal education funding." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 125 S. Ct. 1497, 1503 (2005); see 20 U.S.C. § 1681(a).²⁰ The private right of action implied by Title IXencompasses claims of retaliation "where the funding recipient retaliates against an individual because he has complained about sex discrimination." Jackson, 125 S. Ct. at 1502. Such retaliation "constitutes intentional 'discrimination' 'on the basis of sex' in violation of Title IX." Id. at 1504.

Courts generally look to Title VII as the appropriate analog for the legal standards in Title IX claims. See, e.g., Preston v. Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206-07 (4th Cir. 1994) (applying Title VII's burden-shifting scheme to a Title IX retaliation claim); Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243, 248 (2d Cir. 1995) (same) (discrimination and retaliation claims); Johnson v. Baptist Med. Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996) (same) (discrimination claim); Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (same); Lowrey v. Tex. A&M Univ. System, 11 F. Supp. 2d 895, 911 (S.D. Tex. 1998) (same) (retaliation claim).²¹ Since Cummings bases his allegations on circumstantial and not direct evidence, the court will analyze Cummings' claim under the familiar burden-shifting framework established by McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 1824-26 (1973). See Lowrey, 11 F. Supp. 2d at 911; Smith v.Xerox Corp., 602 F.3d 320, 327 (5th Cir. 2010) (Title VII case) (explaining that the McDonnell-Douglas approach applies when the plaintiff's claim is based on circumstantial evidence).

Under the McDonnell-Douglas framework Cummings must first establish a prima facie case of discrimination.²² Reeves, 120 S. Ct. at 2106 (ADEA case); Lowrey, 11 F. Supp. 2d at 911. If Cummings makes a prima facie showing, the burden of production then shifts to TSU to articulate a legitimate, non-retaliatory reason for its employment action. Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008) (Title VII retaliation case); Lowrey, 11 F. Supp. 2d at 911. If TSU meets this burden, the inference of unlawful retaliation dissolves and Cummings must establish that TSU's reason is a pretext for the actual retaliatory reason. Id. The ultimate burden of persuading the trier of fact that TSU intentionally discriminated against Cummings remains with Cummings. Reeves, 120 S. Ct. at 2106.

B. Analysis

1. Cummings' Prima Facie Case

To establish a prima facie case of retaliation Cummings must show that (1) he participated in an activity protected by Title IX, (2) TSU took an adverse employment action against him, and (3) acausal connection exists between the protected activity and the adverse action. Lowrey, 11 F. Supp. 2d at 912; see Aryain, 534 F.3d at 484; Shirley v. Chrysler First, Inc., 940 F.2d 39, 42 (...