United States District Court, E.D. Texas
Barker, District Judge
Glen Holmes sues his former employer, Texas College, alleging
retaliation prohibited by Title IX of the Educational
Amendments Act of 1972, 20 U.S.C. § 1681(a). Texas
College moves for summary judgment. As the moving party,
Texas College must prove that “there is no genuine
dispute as to any material fact and [it] is entitled to
judgment as a mater of law.” Fed R. Civ. P. 56(a). The
court draws all reasonable factual inferences in favor of
Holmes as the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254 (1986).
relevant here, Title IX creates a private cause of action for
“[retaliation against a person because that person has
complained of sex discrimination.” Jackson v.
Birmingham Bd. of Educ, 544 U.S. 167, 173 (2005). A
plaintiff may establish prohibited retaliation by showing (1)
that he engaged in an activity protected by Title IX, (2)
that he suffered an adverse employment action, and (3) a
sufficient causal connection between the protected activity
and the adverse employment decision. See Willis v. Cleco
Corp., 749 F.3d 314, 317 (5th Cir. 2014). A person who
complains of sex discrimination can be the victim of
prohibited retaliation even if the original complaint was of
sex discrimination against others. Jackson, 544 U.S.
lawsuit alleges that he was fired from Texas College in
retaliation for complaining, at a meeting on Au g u st 23,
2018, about a reduction in funding for the women's
softball team as compared to the funding for the men's
football team. Doc. 1 at 3. But Texas College argues, in
seeking summary judgment, that there is no genuine factual
dispute about whether Holmes made such a complaint of sex
College supports its argument with the declarations of two of
its officials who said that, at the August 23 meeting, Holmes
did not complain that women's and men's athletics
were being treated differently. Doc. 28-2, ¶ 8; Doc.
28-3, ¶ 11. The two officials state that the meeting
instead covered Holmes's decision to offer scholarships
to 27 softball players without approval from the athletic
director, which caused headache over whether the promised
scholarships would have to be cut as unauthorized. Doc. 28-2,
¶¶ 7-9; Doc. 28-3, ¶¶ 8-12. The officials
also testified to their concerns with Holmes's job
performance. Doc. 28-2, ¶¶ 13-15; Doc. 28-3,
¶¶ 1-8, 15.
College points further to Holmes's deposition, where he
testified about the meeting as follows: “I never said,
‘Oh, y'all can't do them girls like that.
Don't do that.' I was totally acceptable . . . . So I
was in total agreement with the fact that they [were] going
to make that drastic cut to those girls.” Doc. 28-4 at
13-14. Although Texas College may not have asked Holmes if he
“raised Title IX concerns” in those exact words,
Holmes's deposition testimony indicates that he had no
complaints, Title IX or otherwise, with the contemplated
response to this aspect of the motion for summary judgment,
Holmes points only to his declaration of October 9, 2019,
sworn after Texa s College's motion. As relevant here,
that declaration simply states: “On Augus t 23, 2018, I
met with the Athl e t ic Director and Dr. Marshall-Biggins in
which I expressed Title IX concerns regarding the reduction
in the amount of women's softball scholarships
vis-à-vis the scholarships awarded in the
football program.” Doc. 33-3, ¶ 6.
nonmovant's “self-serving sworn statement” in
opposition to summary judgment “can create a genuine
dispute of material fact.” Bargher v. White,
928 F.3d 439, 445 (5th Cir. 2019). But “conclusory
allegations, speculation, and unsubstantiated assertions are
inadequate” to establish the existence of such a
dispute. Id. at 444; see also Forsyth v.
Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). A party
opposing summary judgment must “identify specific
evidence in the record, and . . . articulate the precise
manner in which that evidence supports their claim.”
Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir.
2014) (cleaned up).
under the “sham-affidavit” rule, a nonmovant
“may not manufacture a dispute of fact merely to defeat
a motion for summary judgment.” Doe ex rel. Doe v.
Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir.
2000). If a nonmovant offers a declaration that contradicts
his earlier testimony, a court should disregard the new
statement unless “sufficiently persuasive reasons are
given” for the change. EBC, Inc. v. Clark Bldg.
Sys., Inc., 618 F.3d 253, 270 (3d Cir. 2010).
College invokes both of those doctrines. First, it argues
that Holmes's statement in his declaration that he
“expressed Title IX concerns” is conclusory and
is insufficient to create a genuine factual dispute about
whether Holmes complained of sex discrimination. Second, Tex
a s College argues that Holmes's declaration contradicts
his earlier deposition and should be disregarded under the
sham-affidavit rule. The court finds both arguments
Holmes's mere statement that he “expressed Title IX
concerns” is conclusory and is unsubstantiated by any
detail. See Bargher, 928 F.3d at 444. Without any
evidence in the summary-judgment record about what
specifically Holmes allegedly complained about, the court
cannot review any such alleged complaint to determine whether
it falls within the legal protections of Title IX.
Holmes's conclusory statement that he made a complaint
covered by Title IX does not relieve the court of its
responsibility to review that legal issue-and thus determine
whether any factual dispute potentially raised by
Holmes's declaration is legally material. As the Fifth
Circuit has explained, a person's objection is not
protected from retaliation under Title IX simply because it
concerns women's sports; rather, the objection must be
“related to gender inequality.” Minnis v. Bd.
of Sup'rs, 620 Fed.Appx. 215, 222 (5th Cir. 2015)
(unpublished). But Holmes's alleged objection was never
put in writing and is not specified in his recent
declaration. Whether Holmes's allegedly expressed
concerns were “Title IX concerns” that are
protected from retaliation is a conclusion of law.
Holmes's mere assertion of that legal conclusion is not
evidence that allows the court to review whether any factual
dispute could allow the jury to find for Holmes on this
element of his claim.
and independently, Holmes's declaration violates the
sham-affidavit rule. See Dallas Indep. Sch. Dist.,
220 F.3d at 386. A party cannot defeat summary judgment by
submiting an affidavit “that impeaches, without
explanation, ” his previous deposition testimony.
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489,
495 (5th Cir. 1996). Holmes's deposition testimony that
he “was in total agreement with the fact that they
[were] going to make drastic cuts to those girls'”
scholarships is inconsistent with his later declaration that
he objected in the meeting to those same cuts. Plaintiff
offers no explanation for the change. Under the
sham-affidavit rule as well, Holmes's declaration is
insufficient to show a genuine factual dispute on an
essential element of his claim.
Texas College is entitled to summary judgment, which the