Hicks v. Alexander City Board of Education et al

Filing 32

MEMORANDUM OPINION AND ORDER that Defendants' 21 Motion for Summary Judgment is GRANTED on all of Hicks's claims as further set out in the opinion and order. An appropriate judgment will be entered. Signed by Chief Judge William Keith Watkins on 8/23/2012. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
WILLIE H. HICKS,
Plaintiff,
v.
ALEXANDER CITY BOARD OF
EDUCATION, et al.,
Defendants.

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MEMORANDUM OPINION AND ORDER
This is an employment discrimination and retaliation action against the
Alexander City Board of Education (“ACBOE” or “Board”), five members of the
ACBOE, and the superintendent of Alexander City Schools. In this lawsuit, Plaintiff
Willie H. Hicks, an African-American, alleges that ACBOE removed him as the head
coach for the boys’ varsity and girls’ junior varsity basketball teams based upon his
race and in retaliation for engaging in protected conduct. He brings his claims
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., 42
U.S.C. § 1981, and 42 U.S.C. § 1983.
Before the court is Defendants’ motion for summary judgment, which is
accompanied by a brief and an evidentiary submission. (Docs. # 21–23.) Mr. Hicks
responded in opposition to summary judgment (Doc. # 26), and Defendants replied

(Doc. # 29). The motion is ready for resolution. Based upon careful consideration of
the arguments of counsel, the relevant law and the record as a whole, Defendants’
motion for summary judgment is due to be granted.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331,
1343(a)(3) and 42 U.S.C. § 2000e-5(f)(3). The parties do not contest personal
jurisdiction or venue, and the court finds that there are allegations sufficient to support
both.
II. BACKGROUND
Mr. Hicks has taught in the Alexander City School System for more than
twenty-five years. Most of his educational career has been spent at Benjamin Russell
High School (“BRHS”) as a physical education teacher. Mr. Hicks is currently a
health teacher. In addition to being a teacher, Mr. Hicks is one of the most successful
head coaches of boys’ varsity basketball in the history of BRHS, having compiled a
record of 190 wins and 105 losses. However, Mr. Hicks has faced difficulties during
his career at BRHS. In 2003 and 2004, Mr. Hicks filed charges of discrimination with
the Equal Employment Opportunity Commission (“EEOC”), alleging in part that he
had been paid less for coaching than similarly-situated white coaches. Ultimately,

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ACBOE raised his coaching supplements to $8,000 a year in order to ensure a nondiscriminatory supplemental pay scale, and litigation was avoided.
This action arises out of the termination of Mr. Hicks in his coaching positions.
The ACBOE voted not to renew Mr. Hicks’s contract as the head coach of the boys’
varsity basketball team after the 2008–09 school year. After the 2009–10 school year,
the Board voted again not to renew Mr. Hicks’s contract, this time as the head coach
of the girls’ junior varsity basketball team. Mr. Hicks filed EEOC charges with
respect to these nonrenewals and filed suit on January 5, 2011, after receiving
statutory notice of his right to sue from the EEOC.1
Lou Ann Wagoner became superintendent of Alexander City Schools on June
1, 2008. Superintendent Wagoner was responsible for making recommendations for
all employment actions, including contract renewals, to the full Board. The full Board

would then vote on the recommendations, which if passed, would become the
employment actions of ACBOE.

At the end of the 2008–09 school year,

Superintendent Wagoner recommended to the full board that Mr. Hicks be

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Defendants argue that Mr. Hicks’s claim challenging the nonrenewal of his position as
coach of the boys’ varsity basketball team is time barred for failure to file a Title VII claim
lawsuit within ninety days of receiving a right to sue letter, which it argues occurred in July
2009. Mr. Hicks contends that his second EEOC charge, which was filed in July 2010, provides
the basis to find his present claim about his termination as the boys’ varsity basketball coach
timely. Neither party argues this point with clarity; therefore, the court assumes, without
deciding, that Mr. Hicks is not time barred from pursuing his claim challenging his termination
as the head coach of the boys’ varsity basketball team.
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nonrenewed as the head coach of the boys’ varsity basketball team. She alleges that
her recommendation was based on concerns voiced by members of the community,
students, and teachers at BRHS, as well as on information she had received from
board members themselves.
The next year, in May 2010, Superintendent Wagoner recommended the
removal of Mr. Hicks as the girls’ junior varsity basketball coach based primarily
upon the recommendation of Principal Jose Reyes. Principal Reyes had expressed his
concerns about Mr. Hicks, including his use of inappropriate language and improper
conduct toward team players. Principal Reyes also expressed broader concerns about
Mr. Hicks’s reputation and the number of complaints from parents and other members
of the community. Several complaints also had been brought to the attention of the
board members (especially African-American board members) by members of the
community. In some instances, the individual board members claimed they personally
witnessed inappropriate conduct. At least three board members reported complaints
that Mr. Hicks had used vulgar and inappropriate language in the presence of students.
Mr. Hicks vigorously contests the facts underlying the attacks on his character
as false and not credible, but admits that he may have used inappropriate language in
front of students and that members of the community had lodged complaints against
him. Mr. Hicks argues that the lack of factual bases for the character attacks on him
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demonstrates that there were members of the school administration who had a
personal or discriminatory vendetta against him.
The Board selected two male African-American coaches to replace Mr. Hicks:
Michael Goggins replaced Mr. Hicks as the head boys’ varsity basketball coach, and
Roderick Williams replaced Mr. Hicks as the junior varsity girls’ basketball coach.
Mr. Hicks acknowledges that the African-American coach who replaced him as head
coach of the boys’ varsity basketball team had prior coaching experience and that he
had played basketball at the collegiate level. (Hicks’s Dep. 49.) After one season, Mr.
Goggins left his head coaching position with the boys’ varsity basketball team, and
subsequently, a white head coach, Jeffery Hines, was hired to replace Mr. Goggins.
III. STANDARD OF REVIEW
Summary judgment should be granted only “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). Under Rule 56, the moving party “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden by presenting
evidence showing there is no genuine issue of material fact, or by showing that the
non-moving party has failed to present evidence in support of some element of its case
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on which it bears the ultimate burden of proof. Id. at 322–24. “[T]he court must view
all evidence and make all reasonable inferences in favor of the party opposing
summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995).
Once the moving party has met its burden, “an opposing party may not rely
merely on allegations or denials in its own pleading; rather, its response must – by
affidavits or as otherwise provided in this rule – set out specific facts showing a
genuine issue for trial.” Rule 56(e)(2). To avoid summary judgment, the non-moving
party “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). A genuine factual dispute exists if “a reasonable jury could return a verdict for
the non-moving party.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,
1358 (11th Cir. 1999) (internal quotation marks and citation omitted).
IV. DISCUSSION
Mr. Hicks alleges multiple claims against Defendants. First, he brings claims
pursuant to § 1981 and § 1983 for employment discrimination and adoption of a
custom or policy that deprives him of his equal protection right to be free from state
sanctioned racial discrimination. Second, Mr. Hicks asserts violations of Title VII,
including claims alleging race discrimination in his termination from both coaching
positions, failure to rehire him to his former position as head coach of the boys’ varsity
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basketball team, and retaliation stemming from his 2003, 2004 and 2009 EEOC
charges. Defendants contend that summary judgment is appropriate on all claims.
A.

Claims for Racial Discrimination in Termination
1.

Interplay Between § 1981, § 1983 and Title VII in the Public

Employment Context

Mr. Hicks asserts § 1981 and § 1983 claims against ACBOE, the superintendent,
and the individual Board members.2 Where a plaintiff seeks vindication of rights
secured by § 1981 against a governmental actor, § 1983 provides the exclusive remedy
for obtaining relief. Butts v. Cnty. of Volusia, 222 F.3d 891, 893 (11th Cir. 2000)
(citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731–32 (1989)); see also Rioux
v. City of Atlanta, 520 F.3d 1269, 1273 n.3 (11th Cir. 2008). The Eleventh Circuit has
explained that generally when race discrimination claims arise in the public
employment context, “§§ 1981 and 1983 claims require the same elements of proof and
involve the same analytical framework as Title VII claims.” Bush, 414 Fed. App’x at
266 (citing Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th

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An aggrieved public employee may use § 1983 as a vehicle for bringing a civil lawsuit
because § 1983 “provides every person with the right to sue those acting under color of state law
for violations of federal constitutional and statutory provisions.” Williams v. Bd. of Regents of
Univ. Sys. of Ga., 477 F.3d 1282, 1299 (11th Cir. 2007). The Fourteenth Amendment’s Equal
Protection Clause prohibits intentional race discrimination in public employment. See Cross v.
State of Ala., 49 F.3d 1490, 1507 (11th Cir. 1995). “Section 1981 also prohibits public
employers from terminating contracts on the basis of an employee’s race.” Bush v. Houston
Cnty. Comm’n, 414 Fed. App’x 264, 266 (11th Cir. 2011).
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Cir. 2000)); see also Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (“[T]he
analysis of disparate treatment claims under § 1983 is identical to the analysis under
Title VII where the facts on which the claims rely are the same.”). Based upon this
authority, this opinion explicitly addresses only Title VII unless otherwise noted.
2.

Claims for Racial Discrimination in Termination

Mr. Hicks alleges two specific instances of racial discrimination: that he was
nonrenewed from his position as coach of the boys’ varsity basketball team after the
2008–09 school year and that he was nonrenewed from his position as coach of the
girls’ junior varsity basketball team after the 2009–10 school year.
A plaintiff has “‘the ultimate burden of proving discriminatory treatment’” and
can meet that burden by presenting direct or circumstantial evidence of intent.
Crawford, 529 F.3d at 975–76 (quoting Earley v. Champion Int’l Corp., 907 F.2d
1077, 1081 (11th Cir. 1990)). The McDonnell Douglas burden-shifting framework
applies when a plaintiff seeks to prove discriminatory intent by circumstantial
evidence, as Mr. Hicks seeks to do in this case.3 Id.
Under that framework, a plaintiff must first make out a prima facie case of
discrimination. For a racially discriminatory discharge claim, a plaintiff may satisfy
a prima facie case by showing that (1) he was a member of a protected class, (2) he

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The framework is based on McDonnell Douglas v. Green, 411 U.S. 792 (1973).
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was qualified for the position, (3) he was subjected to an adverse employment action,
and (4) “he was replaced by someone outside his protected class or was treated less
favorably than a similarly-situated individual outside his protected class.” Maynard
v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
Once the plaintiff makes out a prima facie case of discrimination, the employer
must “‘articulate some legitimate, nondiscriminatory reason’ for the adverse
employment action,” which, if established, shifts the burden back to the plaintiff to
show the employer’s reason was “pretext for discrimination.” Crawford, 529 F.3d
at 976 (quoting McDonnell Douglas, 411 U.S. at 802). To show pretext, the plaintiff
must “‘cast sufficient doubt’” on the employer’s reason such that a “‘reasonable
factfinder’” could conclude that the reason did not “‘actually motivate [the employer’s]
conduct.’” Id. (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.
1997)).
Defendants concede that Mr. Hicks is a member of a protected class, that his
nonrenewals were adverse employment actions, and that he was qualified for the
positions. However, Defendants contend that Mr. Hicks’s prima facie case fails on the
fourth element because Mr. Hicks was replaced in his coaching positions by AfricanAmerican coaches.

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The facts establish that Mr. Hicks was replaced by African-American coaches
in both coaching positions at issue, and Mr. Hicks does not contest those coaches’
qualifications. However, Mr. Hicks points to the hiring of Mr. Hines (who is white),
who filled the head coaching position for the boys’ varsity basketball team after Mr.
Hicks’s coaching replacement, Mr. Goggins, stepped down. Mr. Hicks argues that by
initially replacing him with an African-American coach, the Board was attempting to
open the door for replacing him in the long term with white coaches and that the Board
only wanted the appearance of a non-racial motive.

It is true that in certain

circumstances, a plaintiff may establish a prima facie case of discrimination “despite
the fact that the employer hired a minority to fill the vacancy left by the plaintiff.”
Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1521 (11th Cir. 1995) (listing factors
courts have considered in analyzing whether a minority replacement dispels an
inference of discrimination). Here, however, Mr. Hicks relies only on his bare
assertion of a discriminatory motive theory, supported by nothing but speculation. He
presents no evidence from which it reasonably can be inferred that the hiring of
African-American coaches to replace him was a pretextual plan to cover up
Defendants’ intent to discriminate against Mr. Hicks based upon his race. The purpose
of the prima facie case is to make an initial but refutable demonstration that racial bias
motivated an employment decision. On this record and absent any evidence that a
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white coach was accused of engaging in similar misconduct but was retained, the fact
that Mr. Hicks was replaced by African-American coaches prevents an inference that
racial discrimination was at play in the decisions to non-renew Mr. Hicks’s contracts
with respect to his coaching jobs.
Nor does Mr. Hicks fare better in the pretext analysis. He puts the vast majority
of his brief behind arguing that the accusations against his character were unsupported
and thereby demonstrate pretext. To establish pretext, it is not enough that Mr. Hicks
believes that he is more qualified than the coaches who were selected. The concerns
addressed by a Title VII discrimination action focus on whether the employment
decision was motivated by discrimination based on race, and not “whether the
employment decision [was] prudent or fair.” Lee v. GTE Fla., Inc., 226 F.3d 1249,
1253 (11th Cir. 2000) (courts are not in business of judging whether an employment
decision is prudent or fair). An employee may not “substitute his business judgment
for that of the employer.” Chapman v. AI Trans., 229 F.3d 1012, 1030 (11th Cir.
2000). On this record, even if it were assumed that Mr. Hicks could establish a prima
facie case, he fails to present any evidence that the legitimate, nondiscriminatory
reasons for terminating his employment – multiple instances of misconduct reported
and/or observed by the Board – were pretextual. Because Mr. Hicks fails to establish
a prima facie case of discrimination on his claims challenging his terminations from
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his head coaching positions or to raise a genuine issue of material fact on pretext,
summary judgment is due to be entered in favor of Defendants on these claims.
Finally, Mr. Hicks mentions that he applied and should have been rehired for the
head coach of the boys’ varsity basketball team from which he was terminated. (Doc.
# 26 at 33.) However, on this record, this claim does not give rise to a separate cause
of action from his Title VII discrimination claim. A claim for failure to rehire cannot
stand apart from a wrongful termination claim unless there is an independent act of
discrimination in the refusal to rehire. Cf. Poulsen v. Publix Super Markets, Inc., 302
Fed. App’x 906, 909 (11th Cir. 2008) (“[A] cause of action for failure to rehire after an
alleged discriminatory termination accrues at the same time as does the termination
claim absent a new and discrete act of discrimination in the refusal to rehire.”). No
independent act of discrimination is presented or argued. Additionally, even if it were
assumed arguendo that Mr. Hicks could satisfy the prima facie elements on a failure
to rehire claim, he cannot show that his non-selection was pretextual. Mr. Hicks’s
comparisons of his qualifications to Mr. Hines’s “fails to show that the disparities
between the successful applicant’s and his own qualifications were of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could
have chosen the candidate selected over the plaintiff.” Springer v. Convergys Customer
Mgmt. Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (citation and internal quotation

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marks omitted). Summary judgment is also due to be entered in favor of Defendants
on this failure to rehire claim.
C.

Title VII Retaliation Claims
The burden of proof in Title VII retaliation cases also is governed by the

framework established in McDonnell Douglas. See 411 U.S. at 802; see also Wright
v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999). To establish a prima facie
case of retaliation under Title VII, a plaintiff must prove that (1) he engaged in
statutorily protected activity, (2) he suffered a materially adverse action, and (3) there
was some causal relation between the two events. Goldsmith v. Bagby Elevator Co.,
513 F.3d 1261, 1277 (11th Cir. 2008). Defendants argue convincingly that Mr. Hicks

cannot establish a prima facie case of retaliation. Mr. Hicks presents two theories of
retaliation: that his termination as the head coach of the boys’ varsity basketball team
was in retaliation for filing EEOC charges in 2003 and 2004, and that his termination
as the head coach of the girls’ junior varsity basketball team was in retaliation not only
for filing EEOC charges in 2003 and 2004, but also for filing an EEOC charge in July
2009 with respect to his termination as the head coach of the boys’ varsity basketball
team.
Mr. Hicks cannot establish a causal connection between the filing of his EEOC
charges and his termination from the positions at issue. To establish a causal

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connection, a plaintiff must demonstrate that “the decision-maker[s] [were] aware of
the protected conduct, and that the protected activity and the adverse action were not
wholly unrelated.” McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008) (citing
Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000)). Further, the
plaintiff must show that there is a “very close” temporal proximity between the
employer’s knowledge of the plaintiff’s protected activity and the adverse employment
action. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001); see also
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361 (11th Cir. 2007) (finding no causation
between plaintiff’s complaints of harassment and her termination three months later);
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (three-month gap by itself
was insufficient to casually link allegedly harassing conduct to the protected conduct).
Here, the retaliation claim arising from Mr. Hicks’s nonrenewal as the head
coach of the boys’ varsity basketball team is based upon Mr. Hicks’s having filed
previous EEOC charges in 2003 and 2004. Mr. Hicks’s filing of his EEOC charges in
2003 and 2004 predated his termination by more than five years. Moreover, by Mr.
Hicks’s own account, ACBOE satisfactorily addressed the concerns underlying these
charges by raising his coaching supplemental pay, and litigation was thereby avoided.
Any asserted causal link between Mr. Hicks’s termination as the head coach of the
boys’ varsity basketball team and the previous EEOC charges is too attenuated under
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controlling standards to create a material issue of fact on the issue of retaliatory
animus.
Similarly, Mr. Hicks fails to demonstrate the requisite causal link as to his claim
of retaliation stemming from his removal as the girls’ junior varsity basketball coach.
His 2003 and 2004 EEOC charges are too remote, as already discussed. Moreover, Mr.
Hicks’s July 2009 EEOC charge was filed ten months before he was removed as the
girls’ junior varsity basketball coach. Under binding precedent, a ten-month gap
between the protected conduct and the adverse employment action also is too remote
to permit a reasonable fact finder to make a causal inference. Mr. Hicks’s arguments
for relaxing the temporal nexus requirement are neither supported by authority nor
persuasive.4 (Doc. # 26, at 21–23.)
Because Mr. Hicks fails to establish a prima facie case, there is no need to
address the remaining parts of the McDonnell Douglas test, whether Defendants have
articulated a legitimate, non-retaliatory reason for the adverse employment actions and
whether that reason is pretextual. Nonetheless, assuming that Mr. Hicks had satisfied
the prima facie elements, Mr. Hicks cannot demonstrate that the board members’

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Mr. Hicks includes a statement in an outline heading in his brief that he “was illegally
transferred and his office taken from him after he filed the 2009 charge of discrimination.”
(Doc. # 26, at 19-20.) Mr. Hicks offers no elaboration on this cursory one-sentence statement
and provides no citations to the record or to legal authority to support his rhetoric. The court
declines, therefore, to address this statement.
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concerns over his character and conduct were a pretext for discrimination. Even if
some of the character concerns or complaints concerning Mr. Hicks’s improper
behavior turned out to be unfounded, Mr. Hicks submits no evidence that requires the
court to “second-guess as a kind of super-personnel department” Defendants’ decision.
E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000). The
complaints were plural, from multiple sources, and sufficient to constitute legitimate
reasons for Mr. Hicks’s removal as a high school and junior varsity basketball coach.
And Mr. Hicks himself admits that he engaged in some of the conduct that was the
basis of his termination, such as using profanity around students. Therefore, even
assuming Mr. Hicks had succeeded in presenting a prima facie case, summary
judgment nonetheless is appropriate because Mr. Hicks cannot demonstrate that
Defendants’ reasons for the employment decisions were pretextual.
D.

Additional Matters
Additional matters have been raised in the summary judgment motion that are

no longer necessary to address. Because Mr. Hicks’s discrimination and retaliation
claims fail on their merits, the court need not decide whether the ACBOE members and
the superintendent are appropriate Defendants in their individual and official capacities
under either Title VII, § 1983, or § 1983. Similarly, it need not be decided whether
qualified immunity would otherwise protect the individual Defendants from liability
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under § 1983 in their personal capacities for monetary damages. See Goree v. City of
Atlanta, Ga., 276 Fed. App’x 919, 922 n.2 (11th Cir. 2008). It also is unnecessary to
address Mr. Hicks’s custom and policy claims against ACBOE because “an inquiry
into a governmental entity’s custom or policy is relevant only when a constitutional
deprivation has occurred.” Rooney v. Watson, 101 F.3d 1378, 1381 (11th Cir. 1996).
The failure of Mr. Hicks to demonstrate a constitutional violation also is fatal to his
custom and policy claims.
V. CONCLUSION
Based on the foregoing reasons, it is ORDERED that Defendants’ motion for
summary judgment (Doc. # 21) is GRANTED on all of Mr. Hicks’s claims.
An appropriate judgment will be entered.
DONE this 23rd day of August, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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