                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                    _____________________________
                                                            FILED
                             No. 06-14662        U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                   _____________________________       October 17, 2007
                                                    THOMAS K. KAHN
                 D. C. Docket No. 05-00176-CV-UWC-S        CLERK

JONATH S. NICHOLAS,
an individual,

                                               Plaintiff-Appellant,


     versus


BOARD OF TRUSTEES OF
THE UNIVERSITY OF ALABAMA,
a state entity,

                                               Defendant-Appellee.

                        ______________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                        _______________________

                           (October 17, 2007)

Before EDMONDSON, Chief Judge, CARNES and FAY, Circuit Judges.

PER CURIAM:
           Plaintiff Jonath Nicholas (“Plaintiff”) appeals the district court’s grant of

summary judgment to the Board of Trustees of the University of Alabama

(“Defendant”) against Plaintiff’s Title VII claims of disparate treatment and

retaliation. We affirm.



                                          Background



           Jonath Nicholas, an African-American male, was hired as the assistant coach

of the women’s basketball team (“Team”) at the University of Alabama-Birmingham

(“UAB”) on 27 December 2001.1 When Plaintiff was hired by UAB, Jeannie Milling

was the head coach of the Team; and Amy Champion was the associate coach of the

Team.2 In 2003, Milling investigated allegations that Plaintiff had made improper

sexual advances towards a student on the Team.3 On 30 September 2003, Milling

suspended Plaintiff with pay and then banned Plaintiff from having contact with

Team players.

   1
   Before working at UAB, Plaintiff worked as an assistant coach and recruiting coordinator at a
community college for ten years.
   2
    Plaintiff alleges that Milling and Champion shared a residence together in violation of UAB’s
written nepotism policy.
       3
     During his deposition testimony, Plaintiff admitted viewing the student’s webcam; but he
claimed that he did not see anything of a sexual nature. The student confirmed that Plaintiff never
made sexual advances towards her.

                                                2
        On 24 October 2003, Milling explained in a letter that Plaintiff had the option

of resigning his position or receiving new coaching responsibilities (not including

managing players) until his employment contract with UAB expired in June 2004.

Plaintiff chose to be re-assigned. Head Coach Milling complained to UAB

administrators in November and December 2003 that Plaintiff continued to violate

her order not to have contact with players.

        Around 13 November 2003, Plaintiff sent a letter to UAB Athletic Director

Watson Brown alleging that Milling had engaged in discriminatory conduct.

Plaintiff also filed a discrimination charge with the Equal Employment Opportunity

Commission (“EEOC”) on 23 December 2003 and an amended charge on 30 June

2004.

        In a 6 January 2004 letter from Athletic Director Brown to Plaintiff, Brown

listed Plaintiff’s future responsibilities as helping with the “25th Anniversary

Celebration, in whatever capacity needed” and being used in an “Operations

capacity.” Plaintiff’s remaining coaching duties were removed.

        In March 2004, Head Coach Milling was fired from UAB. Plaintiff applied to

become head coach; but UAB instead selected Audra Smith, an African-American

female, for the position. Athletic Director Brown testified that he hired Smith as head

coach because, although Plaintiff had worked at UAB, Brown had experience with


                                           3
the women’s basketball program at the University of Virginia, one of the top

programs in the country.

      Plaintiff filed a Title VII claim against Defendant alleging (1) disparate

treatment based on race and gender for a salary difference between Plaintiff and Amy

Champion, the former UAB associate coach of the Team (“disparate pay claim”),

(2) disparate treatment based on race and gender for being suspended after it was

alleged that he sexually harassed students (“disparate discipline claim”), (3) disparate

treatment based on race and gender for Plaintiff’s 2004 termination (“disparate

discharge claim”), (4) disparate treatment based on gender for not being hired as head

coach in 2004 (“disparate hiring claim”), (5) retaliation for eliminating Plaintiff’s

coaching duties before his employment contract expired in 2004 and for terminating

Plaintiff as assistant coach and not hiring Plaintiff as head coach (“retaliation claim”).

      Defendant filed a motion for summary judgment alleging that Plaintiff had

failed to establish his prima facie case of disparate treatment discrimination and that

Defendant had established legitimate, nondiscriminatory reasons for paying Plaintiff

and Champion different salaries, for suspending Plaintiff, and for not hiring Plaintiff

as head coach. Defendant also argued that Plaintiff had not presented a prima facie

case of retaliation because Plaintiff did not show that he suffered an adverse

employment act as a result of his filing EEOC charges and because either too much


                                            4
time elapsed between Plaintiff’s original EEOC charge and the alleged retaliatory acts

or the alleged retaliatory acts occurred before Defendant received notice of Plaintiff’s

EEOC charge.

       The district court concluded that Plaintiff had not established a prima facie case

of discrimination on his disparate pay claim or his disparate discipline claim. The

district court also determined that Plaintiff’s disparate discharge claim failed because

Plaintiff had not been discharged. On Plaintiff’s disparate hiring claim and his

retaliatory discharge claim, the district court concluded that Plaintiff had established

his prima facie case, that Defendant had offered legitimate nondiscriminatory reasons

for not hiring Plaintiff, and that Plaintiff had failed to offer sufficient evidence to

show that a material question of fact existed on whether Defendant’s proffered

reasons were pretextual.4

       The district court granted Defendant’s motion for summary judgment on 30

June 2006. Plaintiff appealed.




  4
   The district court did not specifically address Plaintiff’s claim that his remaining coaching duties
were removed in retaliation for the filing of his EEOC charge. Plaintiff raises this retaliation issue
on appeal but does not discuss the district court’s omission.

                                                  5
                                        Discussion



         We review a grant of summary judgment de novo and will affirm if no

genuine issue of material fact exists such that the moving party is entitled to a

judgment as a matter of law. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085

(11th Cir. 2004).



1.       Disparate Pay Claim



         Plaintiff fails to establish a prima facie case for disparate pay because he has

not demonstrated that he occupied a job similar to that of a more highly paid person.

Plaintiff argues that he was discriminated against based on his race and gender

because he was paid less than Champion, who is a white female.5                    Plaintiff

acknowledges that he and Champion had different job titles: he was an assistant

coach; and she was an associate head coach. Nevertheless, he contends that their job

responsibilities, including an emphasis on recruiting, were essentially the same.

Defendant responds that Plaintiff and Champion were not similarly situated because



     5
   Plaintiff was paid $33,189.96 during the 2002 to 2003 academic year; and Champion was paid
approximately $60,000 during this period.

                                             6
Champion was the recruiting coordinator, which exceeded the recruiting

responsibilities assigned to Plaintiff.

         To establish a prima facie case of disparate pay, Plaintiff must show that he

occupies a job similar to that of higher paid persons who are not members of his

protected class. Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir.

1994). Plaintiff has failed to make his prima facie case because he and Champion

did not hold similar jobs. Champion and Plaintiff had different job titles and

responsibilities; and Champion was the Team’s only recruiting coordinator. In

addition, Champion had served as a coach at UAB for several years longer than

Plaintiff.6



2.       Disparate Discipline Claim



         Plaintiff fails to establish a prima facie case for disparate discipline because he

makes no allegations that Defendant failed to discipline a similarly situated employee

for similar conduct. Plaintiff argues that he has established race- and gender-based

disparate treatment because he was suspended after allegations arose that he sexually



     6
   Champion was hired as an assistant coach at UAB in 1994; and she was promoted to associate
head coach in 1999. Plaintiff was hired as an assistant coach at UAB in 2001.

                                              7
harassed student players. Plaintiff contends that another African-American male

assistant coach Charles Junkins faced “similar problems with false allegations” raised

by Milling and Champion. Defendant contends that Plaintiff was suspended because

(1) the sexual misconduct allegations raised against Plaintiff were serious; (2)

Plaintiff was insubordinate to Milling by continuing to interact with players after

being instructed not to do so; and (3) Plaintiff violated NCAA rules by bringing a

card and food to players after a game.7

       To establish discrimination in discipline, Plaintiff must show these things: “1)

that he belongs to a protected class under Title VII; 2) that he was qualified for the

job; and 3) that a similarly situated employee engaged in the same or similar

misconduct but did not receive similar discipline.” Alexander v. Fulton County, 207

F.3d 1303, 1336 (11th Cir. 2000). Here, as the district court observed, Plaintiff fails

to allege that a person outside of his protected class was not suspended after sexual

harassment allegations were raised against that person. Plaintiff only has shown that

Junkins, a person within his protected class, received similar discipline after being




  7
    Plaintiff acknowledged committing an NCAA violation; but he testified that his violation was
accidentally leaving a television behind after he helped some players move into their dorm.

                                               8
accused of similar misconduct. Therefore, Plaintiff has failed to make a prima facie

case.8



3.       Disparate Discharge Claim



         Plaintiff fails to establish a prima facie case for disparate discharge because he

does not demonstrate that any similarly situated employees were treated more

favorably than Plaintiff following the hiring of the new head coach. Plaintiff asserts

that he suffered disparate treatment when his employment contract was not renewed

following its expiration in June 2004. Defendant responds that Plaintiff’s employment

contract was not renewed because Plaintiff did not apply for a position after Audra

Smith took over as the Team’s new head coach in April 2004. Defendant also asserts

that UAB never promised a new employment contract to Plaintiff and that Coach

Smith retained no assistant coaches who had worked previously for Coach Milling.

         To establish a prima facie case of disparate treatment based on an employee’s

discharge, Plaintiff must show that (1) he is a member of a protected class, (2) he was


     8
   Plaintiff also argues that Milling made negative statements about men and engaged in “criticism
of African-American players’ ability to intellectually grasp the game of basketball.” He also contends
that Milling showed preferential treatment to Champion, such as allowing her to make trips to the
Final Four. These assertions do not change the conclusion that Plaintiff failed to make a prima facie
case on his disparate discipline claim.

                                                  9
qualified for the position, (3) he suffered an adverse employment act, and (4) his

employer treated similarly situated employees outside of his protected class more

favorably. Wilson, 376 F.3d at 1091. Here, none of the assistant Team coaches

working for UAB before Smith became head coach continued to work for UAB under

Coach Smith. Therefore, even assuming that Plaintiff satisfied the first three parts of

his prima facie case, Plaintiff has not satisfied the fourth part because no similarly

situated employees outside of Plaintiff’s protected class were treated more favorably

than Plaintiff.



4.    Disparate Hiring Claim



      Although Plaintiff successfully established a prima facie claim for disparate

hiring, he did not show that Defendant’s legitimate non-discriminatory reason for not

hiring him was pretextual. As such, summary judgment in favor of Defendant on this

claim is warranted. Plaintiff contends that he was discriminated against on the basis

of his gender when Athletic Director Brown hired Smith as the Team’s head coach

instead of hiring Plaintiff. Plaintiff argues that the hiring process was essentially a

“sham” because Brown was affected by Milling’s negative treatment of Plaintiff and

because Brown did not call the references provided by Plaintiff, even though he did


                                          10
call Smith’s references. Defendant responds that Smith was more qualified than

Plaintiff to serve as head coach.

        As the district court correctly concluded, Plaintiff established his prima facie

case on this claim because he showed (1) he was a member of a protected class, (2)

he applied and was qualified for the head coach position, (3) he was not hired, and

(4) the position was filled by a person outside of his protected class. Schoenfeld v.

Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999). But Plaintiff failed to show that

Defendant’s articulated legitimate non-discriminatory reason for not hiring him as

head coach -- that Smith was more qualified for the position -- was pretextual. Smith

had worked for ten years as an assistant coach at the University of Virginia; and she

was promoted to the position of Virginia’s recruitment coordinator in 2000.9 Smith’s

candidacy was recommended to Brown by Pat Summitt, the head coach of the

women’s basketball team at the University of Tennessee. In contrast, Plaintiff had less

than three years of experience at UAB and ten years of experience as an assistant

coach at a community college. Plaintiff has failed to present evidence that rebuts

Defendant’s proffered reason for not hiring him as head coach.




    9
     During this time, the women’s basketball team at the University of Virginia made nine
consecutive NCAA tournament appearances.

                                           11
5.        Retaliation Claim



          Plaintiff’s claim for retaliation fails. Plaintiff argues that Defendant retaliated

against him for sending a letter to Athletic Director Brown in November 2003

complaining of discrimination and for filing a 29 December 2003 charge with the

EEOC by (1) removing his remaining coaching duties on 6 January 2004; (2) not

selecting him as Milling’s replacement for the head coach position in April 2004; and

(3) not renewing his original employment contract when it expired in June 2004.10 To

establish a prima facie case for retaliation, Plaintiff must show that (1) he engaged in

a statutorily protected expression; (2) he suffered an adverse employment act; and (3)

a causal link between the protected expression and the adverse act exists. Sullivan v.

Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999).

          Even assuming that Plaintiff has established that Defendant’s decision to

remove Plaintiff’s coaching duties on 6 January 2004 and to assign him to assist with



     10
     At oral argument, Plaintiff also contended that Milling’s decision to report Plaintiff for NCAA
violations was a retaliatory act. Plaintiff admits to committing the violation and does not dispute that
his employment contract states that employees “shall be subject to disciplinary or corrective action”
if they are found to be in violation of NCAA rules and regulations. Even if Plaintiff is able to
establish a prima facie case for retaliation, Defendant has a legitimate non-discriminatory interest
in self-reporting such violations. Plaintiff offers no evidence to indicate that Defendant’s interest is
pretextual. Former Athletics Director Gene Bartow had previously reported violations by Millings
and, in his letter to Millings, reminded her that if an employee is found in violation of NCAA rules,
the employee may be disciplined.

                                                  12
the 25th Anniversary Celebration and to work in an “Operations capacity” qualifies

as an adverse act, Plaintiff’s claim for retaliation fails. First, Plaintiff has pointed to

no evidence sufficient to establish a causal link between his letter or EEOC charge

and Athletic Director Brown’s decision to remove his coaching duties.11 Second, even

crediting Plaintiff’s arguments on causation, Defendant has met its burden of

producing a legitimate reason for the removal of Plaintiff’s coaching duties: Milling’s

continued dissatisfaction with Plaintiff’s job performance.

        Defendant’s Office of Human Resource Management (“HR”) received

Plaintiff’s EEOC charge on 5 January 2004. HR did not notify Milling and Brown

of the charge until 20 January 2004. As such, Brown could not have taken into

account Plaintiff’s protected act of filing an EEOC charge when he made the decision

to alter Plaintiff’s coaching responsibilities. See Brungart v. BellSouth Telecomms.,

Inc., 231 F.3d 791, 799 (11th Cir. 2000) (“A decision maker cannot have been

motivated to retaliate by something unknown to him.”). And Brown’s decision came

nearly two months after Plaintiff’s letter on 13 November 2003. Although a seven-

week time lapse does not preclude a causal relationship between the acts, it does

weaken Plaintiff’s claim.

   11
      At oral argument, Plaintiff also asserted retaliation based upon his email to Milling on 13
November 2003 and his email on 16 December 2003 to Connie Pruett regarding the disconnection
of his cell phone. Nothing evidences that Director Brown was ever aware of either of these
communications.

                                               13
      Even assuming that Plaintiff has made his prima facie case that the January

2004 change of duties was an adverse employment act for which a causal link exists

with either Plaintiff’s November 2003 letter or his EEOC charge, Defendant has met

its burden of producing a legitimate reason for the removal of Plaintiff’s coaching

duties. Defendant asserts that Plaintiff’s coaching duties were removed because of

the pending sexual harassment allegations and because of Plaintiff’s insubordination

towards Milling. In October 2003, Plaintiff was reassigned to limited coaching duties

restricting his personal access to players. After this reassignment, Milling repeatedly

complained that Plaintiff engaged in insubordinate acts, including interacting with

players and failing to complete scouting reports assigned to him. Milling also sent

an email message as late as 29 December 2003 explaining that Plaintiff continued to

have contact with players and that he had committed an NCAA violation by providing

benefits to players. Plaintiff has offered no evidence demonstrating that, in the light

of the head coach’s repeated complaints, Defendant’s proffered reasons are

pretextual.

      Plaintiff’s claim for retaliation based upon Defendant’s decision not to hire him

as head coach or to renew his contract upon expiration also fails. Defendant was

aware of Plaintiff’s 13 November 2003 letter no later than 25 November and had

notice of Plaintiff’s original EEOC charge in January 2004, both of which occurred


                                          14
three months before Plaintiff was denied the head coach position and over five

months before his contract expired.12 The amount of time that passed between

Plaintiff’s letter, his EEOC charge, and the alleged adverse acts of not to hiring

Plaintiff as head coach or renewing his contract is too great to support a causal link.

See Clark County Sch. Dist. v. Breeden, 121 S. Ct. 1508, 1511 (2001) (citing with

approval circuit court cases invalidating temporal proximities of three and four

months). Also, Defendant has offered legitimate reasons for its acts that have nothing

to do with Plaintiff’s protected conduct. Defendant chose to hire a more highly

qualified applicant as head coach, and Plaintiff chose not to apply for a position as

assistant coach under Audra Smith. Therefore, Plaintiff has failed to make a prima

facie case of retaliation based on not being hired as head coach and not having his

employment contract renewed.




                                       III. Conclusion




  12
    Although Plaintiff did file an amended EEOC charge, he did not sign that charge until 30 June
2004; so the allegedly retaliatory acts could not be in response to the amended charge.

                                               15
      Plaintiff has failed to establish claims for either retaliation or disparate

treatment under Title VII. The district court’s grant of summary judgment for

Defendant was warranted in the light of the evidence.

      AFFIRMED.




                                        16
