Adkins v. University of the Ozarks
OPINION AND ORDER; this case is DISMISSED WITH PREJUDICE. Judgment will be entered accordingly. Signed by Honorable P. K. Holmes, III on June 30, 2017. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Case No. 2:16-CV-2088
UNIVERSITY OF THE OZARKS
OPINION AND ORER
This action arises out of the decision by the University of the Ozarks (“the University”) to
end the employment of plaintiff Laurie Adkins (“Coach Adkins”) at the end of the 2014-2015
softball season. The Court held a bench trial on May 22 and 23, 2017 on Coach Adkins’s claim
for gender discrimination under Title VII of the Civil Rights Act of 1964. Coach Adkins alleged
that the University fired her because she was a woman. During the trial, nine witnesses testified
and 40 exhibits were admitted. After carefully considering the evidence at trial and the legal
arguments made, and based upon observation of the witnesses and an opportunity to weigh their
credibility, the Court now makes its findings of fact and conclusions of law pursuant to Rule 52(a)
of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court concludes that
the University did not discriminate against Coach Adkins based on her gender.
Coach Adkins filed this lawsuit claiming that (1) her termination from the University was
the result of unlawful discrimination based on her sex in violation of Title VII of the Civil Rights
Act of 1964, as amended 42 U.S.C. § 2000e-2, and the Arkansas Civil Rights Act (“ACRA”),
Arkansas Code Annotated § 16-123-107;1 (2) her termination from the University was the result
Arkansas evaluates ACRA sex discrimination cases using the same analytical framework
courts use to evaluate Title VII sex discrimination cases. See Greenlee v. J.B. Hunt Transp. Servs.,
342 S.W.3d 274, 277–79 (Ark. 2009); see also Brodie v. City of Jonesboro, 2012 WL 90016, *2
of unlawful discrimination based on her age in violation of the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et. seq.; (3) the University impermissibly retaliated against her
when she raised the issue of discrimination; and (4) the University breached an employment
contract with her. (Doc. 1). The Court entered summary judgment in favor of the University on
all but the sex discrimination claim. (Doc. 25). In opposition to the contention that it discriminated
against Coach Adkins because she is a woman, the University repeatedly asserted that its legitimate
non-discriminatory reason for its decision to no longer employ Coach Adkins was a failure to
recruit, retain, and graduate players. (Doc. 16, p. 6; Def.’s’s Trial Br., p. 3). Following the trial,
the Court took the matter under advisement. (Docs. 22, 23).
Findings of Fact
The University appointed Laurie Adkins as head women’s softball coach in June 2010 for
a one-year term of employment subject to annual renewal. Her employment was renewed in 2011,
2012, 2013, and 2014. Her last contract of employment (Pl.’s Ex. 7) was for the period from July
1, 2014 to June 30, 2015. Coach Adkins was supervised by Athletic Director Jimmy Clark
(“AD Clark”), who was also the men’s baseball coach. When initially hired, Coach Adkins’s job
description stated that she needed to “maintain ideal roster size through recruiting and retention
(20 softball).” (Pl.’s Ex. 3). However, the ideal roster size was a moving target, as documents
reveal that in 2013 Coach Adkins needed to maintain a roster of “18+ next opening. 22-25 in fall,”
(Def.’s Ex. 5), and in 2014 it was expected that the “roster size needs to be at 24.” (Pl.’s Ex. 5).
(Ark. Jan. 12, 2012) (unreported) (“This court has previously applied the McDonnell Douglas
framework in reviewing the grant of a summary-judgment motion in an employment
discrimination case, . . . and [the plaintiff] fails to provide convincing argument that would cause
us to reconsider our use of the framework.” (citation omitted)).
A 2012 employment evaluation revealed that AD Clark was very satisfied with the work
being done by Coach Adkins. (Def.’s Ex. 3, p. 7). AD Clark wrote that Coach Adkins “inherited
a program that was in bad shape. She has gotten them competitive.” (Id.). He tempered the
otherwise glowing evaluation with the statement that “[t]he only weakness that I have observed is
in regard to maintaining the field.” (Id.). Initially, Coach Adkins was meeting or exceeding
During a 2013 employment evaluation, AD Clark communicated to Coach Adkins that he
was “very concerned about retention.” (Def.’s Ex. 5, p. 7). Under the category for recruiting, Mr.
Clark checked the box for “needs improvement” but did not check the box for “does not meet
During a 2014 employment evaluation, AD Clark once again rated Coach Adkins as “needs
improvement” under the category of “recruiting,” writing in the comment section that “retention
needs to improve.” (Def.’s Ex. 11, p. 2). At the end of the 2014-2015 school year, AD Clark told
Coach Adkins that she would no longer be employed by the University.
AD Clark testified that at the end of the 2013-2014 school year Coach Adkins was not
performing satisfactorily, as shown by her retention of players and her win-loss record, which was
3-37 for that season. Also, AD Clark cited poor communication skills as a reason that he was not
satisfied with her performance, and testified that he asked Coach Adkins to “over communicate”
in the future. AD Clark testified that he could have fired Coach Adkins at the end of the 20132014 year based on that performance, but he wanted to give her another chance to improve. AD
Clark testified that Coach Adkins would have to improve in these areas, but that he thought it was
possible. He characterized these events as being a situation where Coach Adkins was essentially
on probation, and that failure to improve would quite possibly lead to termination. While this
testimony is supported by the retention numbers and the win-loss record, it is inconsistent with the
employment evaluation contemporaneously completed by AD Clark. The evaluation that AD
Clark completed at the end of the 2013-2014 school year rates Coach Adkins as “meets
expectations” in six categories and “needs improvement” in four categories. (Def.’s Ex. 11).
There is not a single category for which AD Clark rated Coach Adkins as “does not meet
expectations.” (Id.). While AD Clark wrote in the comment section that “retention needs to
improve,” he did not make mention of her record of 3-37. (Id.). Under the category of “public
relations,” AD Clark rated Coach Adkins as “meets expectations” and he wrote in the comment
section that she was “good around campus.” (Id.). AD Clark’s rating and comment in the “public
relations” category is at odds with his testimony that at that exact same time he was concerned
with Coach Adkins’s communication and the number of complaints that were being directed to the
President’s office and trickling down to him.
AD Clark testified that Coach Adkins was not handling problems on her team thus creating
issues for the administration. While the Court does not give much weight to AD Clark’s testimony
in light of his poor credibility, President Richard Dunsworth also testified about these complaints.
In her cross examination, Coach Adkins also acknowledged these complaints.2 The specifics of
every one of these complaints are not entirely clear, nor are those specifics entirely relevant, but
there is sufficient testimony in the record for the Court to find that these complaints were lodged,
and that they created problems for the University.3 What matters is that parents and softball players
These incidents are discussed in more detail later in this opinion where legally relevant.
Infra Section B.1.d.
Ben Dykes and Heather Roberts testified that they were unaware of team discipline issues
that resulted in such complaints. However, the fact that one softball player and an unpaid parttime volunteer were unaware of these issues is not inconsistent with the testimony of the President,
the Athletic Director, and Coach Adkins herself, acknowledging that these complaints were
were complaining to AD Clark and President Dunsworth, presenting them with problems that
should typically be handled by a coach.
As evidenced by the discussions that took place at the 2013 and 2014 employment
evaluations, at the time that the University ended the employment of Coach Adkins in 2015, she
had been aware for two years that the University was concerned about the size of her roster and
the number of players retained from year to year. (Def.’s Ex. 5, p. 7; Def.’s Ex. 11, p. 2). At trial,
both parties went to extraordinary lengths to document which players were playing softball over
the various years. (Pl.’s Ex. 22; Def.’s Exs. 12, 13). The retention numbers reflected in these
exhibits show that there was a large amount of attrition from the women’s softball roster while
Coach Adkins was in charge of the program. This finding coupled with the extemporaneous
employment evaluations documenting this problem demonstrate that the University was genuinely
concerned about this issue at the time that they ended the employment of Coach Adkins. At the
end of the 2014-2015 season, AD Clark informed Coach Adkins that the University was “going in
a new direction” and would no longer be employing her services.4
Because Coach Adkins presented no direct evidence of discrimination, her claims are
analyzed under the burden-shifting McDonnell Douglas5 test to determine whether the evidence
supports an inference of unlawful gender discrimination. Under McDonnell Douglas, a plaintiff
must first establish a prima facie case of discrimination by presenting evidence showing that: “1)
At trial, this was called a “termination,” a “firing,” and a “nonrenewal” of an annual
contract. The University’s own contemporaneous documentation shows that this event was
recorded as “termination.” (Pl.’s Ex. 8). Regardless of the terminology, Coach Adkins alleged
that the University made this decision based on her gender, thus giving rise to this lawsuit.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
she is a member of a protected group; 2) she was qualified for her position; 3) she suffered an
adverse employment action; and 4) she was discharged under circumstances giving rise to an
inference of discrimination.” Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011).
In establishing a prima facie case, “the plaintiff’s burden ‘is not onerous.’” McGinnis, 496 F.3d
at 873 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If a prima facie
case is established, the burden of production shifts to the defendant to articulate a legitimate
nondiscriminatory reason for its adverse employment action. Wierman, 638 F.3d at 993. If the
defendant can do so, the prima facie case is rebutted and no inference of unlawful discrimination
is created, unless the plaintiff can produce sufficient evidence to create a genuine issue of material
fact as to whether the articulated reason is pretext for unlawful discrimination. Id. Although the
burden of production shifts between the parties, the burden of persuasion remains on the plaintiff
at all times. Fatemi v. White, 775 F.3d 1022, 1041 (8th Cir. 2015).
Prima Facie Case and Legitimate Nondiscriminatory Reason
In ruling on the University’s motion for summary judgment (Doc. 14), the Court concluded
that Plaintiff made a prima facie case to survive summary judgement on the gender discrimination
The Court also found that the University had articulated a legitimate,
nondiscriminatory reason for its adverse employment action. (Id.). At trial, assuming that Coach
Adkins presented sufficient evidence to make a prima facie showing, and that the University
sufficiently articulated a legitimate nondiscriminatory reason for its actions, the Court concludes
that Coach Adkins fails to show pretext. Therefore, the dispositive issue analyzed by the Court
herein is whether Coach Adkins can show that the University’s proffered reason for her
termination was pretext for unlawful discrimination.
Showing that a defendant’s proffered reason is pretext for an unlawful purpose involves
clearing a high bar under Eighth Circuit precedent. Establishing pretext requires a plaintiff to
“demonstrate that a discriminatory animus lies behind the [defendant’s] neutral explanations ...
[E]ven if an employer fires an employee based upon a mistaken belief, the employee still must
offer some evidence that [discriminatory] animus was at the root of the termination.” Arnold v.
Nursing & Rehab. Ctr. at Good Shepherd, LLC, 471 F.3d 843, 847 (8th Cir. 2006). Showing unfair
treatment of an employee does not necessarily give rise to a Title VII cause of action. Johnson v.
Ready Mixed Concrete Co., 424 F.3d 806, 812 (8th Cir. 2005). Even where an employer overstates
an employee’s shortcomings and points to deficiencies that are due to factors beyond the
employee’s control, there still must be other evidence supporting the conclusion that the stated
reason was merely pretext for unlawful discrimination. Stone v. McGraw Hill Fin., Inc., 856 F.3d
1168, 1176 (8th Cir. 2017). “[A] reason cannot be proved to be a pretext for discrimination unless
it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 515 (1993) (emphasis in original, quotations and citations
omitted), abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
(2009); see also Twymon v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir. 2006). Even showing
that “the employer’s proffered reason is unpersuasive, or even obviously contrived, does not
necessarily establish that the plaintiff’s proffered reason ... is correct.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 146–47 (2000) (quoting Hicks, 509 U.S. at
524); see Hicks, 509 U.S. at 519 (holding that “[i]t is not enough ... to disbelieve the employer; the
factfinder must believe the plaintiff’s explanation of intentional discrimination”) (emphases in the
original)); Chipman v. Cook, 2017 WL 1160585, at *6 (E.D. Ark. Mar. 28, 2017).
A plaintiff can show that any of defendant’s reasons was pretext for unlawful
discrimination by “showing the proffered explanation has no basis in fact” or “directly
persuad[ing] the court that a prohibited reason more likely motivated the employer.” Gibson v.
Geithner, 776 F.3d 536, 540 (8th Cir. 2015). Rude comments and exhibiting a stereotypical
attitude about gender do not rise to the level of showing pretext. Kriss v. Sprint Commc’ns Co.
P’ship, 58 F.3d 1276, 1281 (8th Cir. 1995). Showing that a proportionally small number of
females make up a defendant’s workforce does not show pretext without other independent
evidence. See Bogren v. Minn., 236 F.3d 399, 406 (8th Cir. 2000); see also Springer v. Welspun
Pipes, Inc., 2011 WL 1157568, at n.2 (E.D. Ark. Mar. 29, 2011). Erroneous performance
evaluations, general disagreements with job expectations, and poor supervision do not amount to
Title VII discrimination. Gray v. Arkansas Dept. of Housing and Urban Dev., 310 F.3d 1050,
1052 (8th Cir. 2002) (citing Rose–Maston v. NME Hosps., Inc., 133 F.3d 1104, 1108–09 (8th Cir.
1998)). “To succeed in showing pretext[ ] the employee ‘must provide some evidence that other
employees were not subject to the same level of [treatment] for similar conduct.” McGraw Hill
Fin., Inc., 856 F.3d at 1176 (quoting Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 798
(8th Cir. 2011).
Findings of Law
The University’s Stated Reason was not Pretext for Unlawful
Coach Adkins offered many pieces of evidence as support for her argument that the
University’s proffered reason for her termination was pretext for unlawful discrimination. The
Court will review that evidence by category. The Court ultimately concludes that the evidence,
even if it were sufficient to show that the University’s proffered reason was pretext, does not show
that the University’s proffered reason was pretext for unlawful discrimination.
Performance of Maintenance and Other Field Duties
Coach Adkins testified that she was expected to perform field maintenance and carry out
larger facility improvement projects such as putting up and taking down backstop fences and
dugout nets. This fails to show pretext for unlawful discrimination. When Coach Adkins began
coaching at the University, these tasks were a part of her job description. (Pl.’s Exs. 3, 4). Coach
Adkins testified that these tasks later were delegated to the University’s maintenance department
instead of to her. Taken at face value, all this proves is that the University expected its coaches to
do physical work on their own fields, but later changed its delegation of responsibilities. To begin
to show that this amounts to pretext for unlawful discrimination Coach Adkins must provide some
evidence that this expectation was applied to her unequally because of her gender.6 The only
testimony that came close to making this showing was Coach Adkins’s testimony that she was
made to maintain more field space than that contained on her field, and that Coach Adkins had
fewer student workers at her disposal than AD Clark did.
With regard to the extent of the area that she was expected to maintain, the job description
clearly states that she was to “maintain the softball field and surrounding area.” (Pl.’s Exs. 3, 4)
(emphasis added). Coach Adkins did not present any proof that AD Clark, or any other male
coach, was expected to merely maintain their field with the exclusion of the surrounding area. All
the evidence shows is that Coach Adkins was expected to maintain the area surrounding her field
as stated in her job description. With regard to any discrepancy in the number of student workers
available to her as a softball coach, the University assigned more student worker hours to AD Clark
Coach Adkins testified that Coach Carl Ramsey (a comparator for purposes of making
out a prima facie case (Doc. 25, p. 9)) was never expected to perform this type of work. However,
since Coach Ramsey is a basketball coach, and since the maintenance needs of a softball field
differ substantially from the maintenance needs of a basketball court, the two are not comparable
for this purpose.
given his dual role as the men’s baseball coach and the Athletic Director. Coach Adkins did not
provide a comparison to any similarly-situated male coach who received more student workers
than she did. This evidence does not give rise to an inference of unlawful discrimination, let alone
one strong enough for the Court to discount the University’s proffered reason for Coach Adkins’s
Coach Adkins testified that she was expected to teach a three-hour math course, while male
coaches were expected to teach one-hour physical education courses. All other things being equal,
the number of hours required outside of the classroom to teach a math class far exceed those
required to teach a physical education class, and AD Clark’s testimony to the contrary is
disingenuous and yet another reason the Court doubts his credibility. There is also testimony on
the record that the male coaches who taught physical education were expected to teach more than
one class per year, whereas Coach Adkins was expected to teach only one math class per year.
Coach Adkins testified that AD Clark pressured her into teaching math instead of teaching physical
education, whereas AD Clark testified that Coach Adkins requested to teach math. The evidence
in the record does not allow the Court to determine whether one math class is the equivalent of
two physical education classes, but the fact that the University attempted to balance the workload
depending on whether a coach taught physical education classes or classes in the core academic
curriculum does not support Coach Adkins’s case. Accepting that AD Clark did pressure Coach
Adkins into teaching math, and assuming, arguendo, that teaching one math class is far more work
than teaching two physical education classes, this still does not show pretext. Coach Adkins had
a background in teaching math,7 and teaching math was a job expectation written into her
employment contract. (Pl.’s Ex. 4). No employment contract or teaching background of any male
coach at the University has been offered into evidence, except for AD Clark’s testimony that he
and Coach Adkins were the only coaches who would have been qualified to teach math. That
testimony alone offers further explanation for why Coach Adkins would have taught math and the
other male coaches would have not taught math. Even assuming that the Court were to adopt
Plaintiff’s arguments here, there is simply insufficient evidence to show that the University’s
expectations for Coach Adkins here were based on her gender, and she cannot show pretext for
Comments, Attitudes, and the Culture at the University
Coach Adkins testified about comments, attitudes, and the culture at the University. Coach
Adkins testified that at a meeting with all of the coaches where the University’s new weight room
was being discussed, AD Clark looked down the table at Coach Adkins, the only female coach in
the meeting, and commented that the new weight room would be only for men. Coach Adkins
testified that she wrote an email to Joe Havis (AD Clark’s supervisor at the time) about this incident
and his only response was to state that AD Clark had some growing to do.8
Ben Dykes, an unpaid volunteer in the softball program, testified about three incidents,
Coach Adkins clarified during her cross examination that she was certified to teach
secondary mathematics. Whether Coach Adkins’s certification as a high school math teacher
makes her sufficiently qualified to teach mathematics at the college level in a way that satisfies the
University’s obligations to medical school admissions boards is immaterial for purposes of this
This incident was discussed during Coach Adkins’s direct examination, but was not
discussed during other trial testimony. The email that Coach Adkins sent to Joe Harvis was not
produced as evidence, although Coach Adkins testified that she did not have access to the email
because the University took away her email account. It is unclear if Plaintiff’s counsel attempted
to obtain this email during discovery.
apparently for the purpose of showing disparate treatment of Coach Adkins by the University.
First, when Mr. Dykes was on the softball field with Coach Adkins doing field maintenance, AD
Clark walked onto the field. Mr. Dykes testified that AD Clark addressed Mr. Dykes about field
maintenance developments while ignoring Coach Adkins. Second, Mr. Dykes testified that at a
staff stand-down ceremony, when an unidentified person was introducing the teams, the
unidentified person first introduced Mr. Dykes and then introduced Coach Adkins. Third, one day
when Mr. Dykes and Coach Adkins were in Coach Adkins’s office together, AD Clark stopped by
for about five minutes, and while there directed the conversation at Mr. Dykes rather than Coach
Adkins. Mr. Dykes testified that he found these interactions strange because he was an unpaid
volunteer and he would have thought that Coach Adkins, as the head coach, would have been the
point person for anything softball related. Notably missing from this testimony is any comparison
to the treatment of a male coach, showing that AD Clark would frequently talk directly to a male
coach unlike how he interacted with Coach Adkins. The testimony by Mr. Dykes shows that AD
Clark might not have liked Coach Adkins, but it does not, however, show that AD Clark treated
Coach Adkins differently based on her gender. This testimony, and similar testimony at trial, does
not convince the Court that the University’s stated reason for terminating Coach Adkins is pretext
for unlawful discrimination.
The University and AD Clark’s Support of Coach Adkins’s
Coach Adkins testified about multiple incidents in which she alleges that AD Clark did not
support decisions that she made as a coach. These incidents were contextualized by other trial
testimony, and they fail to show pretext for unlawful discrimination. In one incident, softball
players tweeted and retweeted derogatory and disrespectful statements towards the end of their
senior year at the University, and as a punishment Coach Adkins took away the softball jerseys
that had been given to the players as gifts (“the jersey incident”). Coach Adkins took the jerseys
away from the players right before they were to graduate from the University. The parents of those
students involved the administration, and the jersey incident culminated with AD Clark directing
Coach Adkins to give the jerseys back to the players.
In another incident, an intoxicated 21 year-old softball player was riding in a car with other
intoxicated students when the car rolled over five times (“the rollover incident”). Since this was
the player’s third disciplinary infraction, Coach Adkins removed the player from the team. Coach
Adkins testified that University review of her handling of the rollover incident concluded with AD
Clark “essentially” putting the player back on the team.
A third incident involved an injured softball player whose parent complained to the upper
administration about playing time (“the injured player incident”). On cross examination, Coach
Adkins clarified that her main concern with the injured player incident was that AD Clark allowed
the player’s mother to bring allegations to the team without giving Coach Adkins an opportunity
to address those allegations. This incident concluded with AD Clark ultimately backing the
decision of Coach Adkins not to play the injured player.
Coach Adkins testified that there were other incidents in which AD Clark did not back her
decision to bench players. Coach Adkins also testified that AD Clark did not support her coaching
decisions in that he would second guess the number of timeouts that she took in games.
Notably missing in all of these incidents is any proof that would convince the Court that
AD Clark treated male coaches any differently than he treated Coach Adkins. Coach Adkins’s
testimony tends to show that AD Clark did not like Coach Adkins or questioned her judgment, but
does not give rise to an inference of gender discrimination. Testimony revealed that AD Clark’s
decision in the jersey incident was motivated by the timing of the incident and the concern that
Coach Adkins’s discipline would have negative repercussions for alumni relations. The cross
examination of Coach Adkins with regard to the rollover incident raised questions about a possible
ulterior motivation for removing the intoxicated player the team. Ultimately, even if Coach
Adkins’s decisions were scrutinized more thoroughly than the decisions of other coaches, the
Court does not find on this evidence that it is more likely than not that the University treated Coach
Adkins differently because of her gender. These incidents do not convince the Court that the
University’s proffered reason for terminating Coach Akdins was pretext for unlawful
Failure to Promote
At several points in briefing, and again at trial, Coach Adkins raised the theory that the
University did not promote her to the Senior Women’s Administrator (“SWA”) position, and that
this shows pretext. (Doc. 19, pp. 22-23). In its summary judgment order, the Court ruled that this
theory lacked evidentiary support to show pretext. (Doc. 25, pp. 11-12). Again at trial this issue
arose, and the Court ruled that testimony on this point was not admissible because there was never
a showing that the SWA position was open. This argument asserted by the Plaintiff is therefore
not considered in determining whether Plaintiff showed pretext.
To the Extent that the University’s Stated Reason was Pretext, Plaintiff
Has Not Shown the University’s True Reason was Unlawful
At trial, Coach Adkins continually presented evidence that would allow a factfinder to find
that the University’s stated reason for her termination was pretext, or at least was not the sole
reason. The University repeatedly asserted that its legitimate, non-discriminatory reason for its
decision to no longer employ Coach Adkins was a failure to recruit, retain, and graduate players.
(Doc. 16, p. 6; Def.’s’s trial br., p. 3). Counsel for the University reiterated this reason in his
opening statement. As the trial progressed, however, it became apparent that while retention issues
with the women’s softball roster were considered, there were other reasons motivating the
University’s decision that had previously not been brought to the forefront. The Court asked AD
Clark about the conversations that he had with his superiors at the University regarding the
decision made to end Coach Adkins’s employment. AD Clark cited four reasons that he discussed
in making the decision: (1) winning, (2) retention, (3) graduation, and (4) the large number of
complaints from parents, or what AD Clark referred to as “drama.” During his direct examination,
President Dunsworth also revealed that conversations about termination of Coach Adkins’s
employment entailed those same concerns. The record has much testimony regarding the lack of
winning,9 the lack of retention, the concerns about graduation, and the high levels of drama. So
while there is sufficient evidence to show that retention was a cause contributing to the
University’s decision to end the employment of Coach Adkins, the Court finds it more likely than
not that these other reasons also contributed to the decision. However, issues with winning games,
graduation rates of players, and running a sports team in a way that increases parent complaints
are all permissible reasons for terminating employment. Termination for these reasons does not
necessarily tend to show discrimination based on gender, and the fact that they entered the decision
making process is not prohibited by law. Therefore, to the extent that the Plaintiff showed pretext,
the stated reason was pretext for other legal reasons, not for an impermissible reason.
At trial, Coach Adkins argued that the University’s stated reasons for its action shifted over
time, and that this is indicative of pretext.
“A change in an employer’s legitimate,
During her direct examination, Coach Adkins testified that when she began coaching at
the University, Rick Niece told her that he did not care if she ever won a game, but rather that the
team would be competitive in the ASC. This testimony seems to undermine the assertion that the
University would consider her lack of wins as a reason for ending her employment. However,
Rick Niece was not a witness, and this point was not developed further by Plaintiff or Defendant.
nondiscriminatory reason for firing an employee is probative of pretext under Title VII or ADEA
only if the discrepancy is substantial.” Bone v. G4S Youth Servs., LLC, 686 F.3d 948 (8th Cir.
2012). By contrast, articulating additional reasons for terminating someone while not deviating
from the originally stated reason is not problematic, especially where the additional reasons have
“generally been alternate ways of stating the original reasons offered.” Johnson v. Securitas Sec.
Servs. USA, Inc., 769 F.3d 605, 613 (8th Cir. 2014). Nothing prohibits an employer from
elaborating on its proffered explanation for an adverse employment action. See Elam v. Regions
Fin. Corp., 601 F.3d 873, 881 (8th Cir. 2010). The additional reasons provided by the University
are elaboration, and they are not incompatible with the originally-stated reason. Thus, while the
Court agrees with Coach Adkins that the University has shifted its explanation for her termination,
the manner in which it has done so does not support a finding that its proffered reason was pretext
for unlawful discrimination.
Same Actor Inference
The University urged the Court to adopt the same actor inference and conclude that there
was no discrimination because the same individual both hired and fired Coach Adkins. The
University argued that this creates a “strong inference … that his motive was not unlawfully to
discriminate.” (Def.’s Trial Br., p. 1) (citing Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173 (8th
Cir. 1992)). In the age discrimination context, the Eighth Circuit Court of Appeals has said “it is
unlikely a supervisor would hire an older employee and then discriminate on the basis of age, and
such evidence creates a presumption against discrimination.” Fitzgerald v. Action, Inc., 521 F.3d
867, 877 (8th Cir. 2008). “An individual who is willing to hire and promote a person of a certain
class is unlikely to fire them simply because they are a member of that class.” Waterhouse v. D.C.,
298 F.3d 989, 996 (D.C. Cir. 2002) (quoting Buhrmaster v. Overnite Transp. Co., 61 F.3d 461,
464 (6th Cir. 1995), and further citing cases in agreement from the Fourth, Fifth, Seventh, Ninth,
and Eleventh Circuit Courts of Appeal). The best reading of this case law is that whether the same
actor hired and fired an individual is one factor in the totality of circumstances for the factfinder
to consider in deciding whether unlawful discrimination occurred.
AD Clark testified that he hired Coach Adkins, but he also repeatedly used the word “we”
in describing her hire, and it appears that a committee was involved in the hiring decision. If AD
Clark was the ultimate decision maker with respect to hiring Coach Adkins, it is unlikely that he
would hire a woman and then fire her because she was a woman. But still, assuming Coach Adkins
could show that the University’s reasons for her termination were pretextual, there is insufficient
evidence that the actual reason AD Clark decided to terminate her was unlawful discrimination.
Consequently, she did not persuade the Court that unlawful discrimination was a more likely
reason for her termination.
An Inference Created by First Offering the Coaching Position
Previously Held by Coach Adkins to a Woman
In both pretrial briefing and during the trial testimony, both parties were concerned with
litigating the issue of whether the University first offered the vacancy created by Coach Adkins’s
absence to a woman before hiring a man to replace her.10 The University argued that because AD
Clark attempted to replace Coach Adkins with another woman, this creates a “strong inference”
that AD Clark’s motive in terminating Adkins was not because she was a woman. (Def.’s Trial
Br., p. 2) (citing Thomas v. Runyon, 108 F.3d 957 (8th Cir. 1997). The cited case does not hold
that any such inference is created, however, and treats the replacement of a plaintiff by someone
At one point during trial, counsel for Coach Adkins suggested through questioning that
she had a witness who would call into doubt whether the position was first offered to a woman.
This witness ultimately was not called, and the testimony showed that the University did indeed
offer the position to a woman.
in the same protected category as an additional circumstance to be weighed in the totality of
circumstances, weighing it as a factor that is probative of a legitimate, nondiscriminatory reason.
Thomas v. Runyon, 108 F.3d 957, 961 (8th Cir. 1997). The Court declines to adopt the University’s
proposed inference, but finds that this factor provides additional support for the conclusion that
Coach Adkins cannot show the proffered reason was pretext for unlawful discrimination.
Coach Adkins has not shown that any of the University’s reasons is pretext for unlawful
discrimination. For the reasons set forth above, the Court concludes that the University did not
discriminate against Coach Adkins based on her gender.
IT IS THEREFORE ORDERED that this case is DISMISSED WITH PREJUDICE.
Judgment will be entered accordingly.
IT IS SO ORDERED this 30th day of June, 2017.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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