     Case: 14-31251      Document: 00513097916         Page: 1    Date Filed: 06/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-31251                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
ANTHONY MINNIS,                                                             June 29, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE,

              Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                               USDC No. 3:13-CV-5


Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Anthony Minnis, former head coach of the Louisiana State University
women’s tennis team, appeals the district court’s grant of summary judgment
dismissing his Title VII, Title IX, and state-law claims against the University’s
Board of Supervisors (“LSU”). We AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-31251    Document: 00513097916     Page: 2   Date Filed: 06/29/2015



                                 No. 14-31251
              FACTUAL AND PROCEDURAL BACKGROUND
      LSU hired Anthony Minnis as head coach of its women’s tennis team in
1991, making him the first black head coach of any sport in the school’s history.
Minnis remained as head coach for 21 years until LSU elected not to renew his
contract in June 2012.
      During his time at LSU, Minnis received various awards, including being
chosen as the Southwest Regional Women’s Tennis Coach of the Year five
times and the Southeastern Conference (“SEC”) Coach of the Year once.
During that same time, though, the women’s tennis team struggled. In the
course of his 21 years as head coach, Minnis’s teams achieved a winning record
in the SEC on only three occasions. His overall SEC win-loss record was 86-
146. During his last four years at LSU, Minnis’s total SEC win-loss record was
16-27. Minnis’s teams competed in the NCAA tournament in 15 out of his 21
years, but in his last 12 years, none advanced past the second round. In the
year preceding Minnis’s termination, his team did not reach the NCAA
tournament and the team had losing seasons in each of the three years
preceding his termination.
      LSU hired Jeff Brown, who is white, as head coach of its men’s tennis
team in 1998. In the five years preceding Minnis’s termination, the men’s and
women’s tennis teams had nearly identical records. But in the 15 years during
which both coaches were at LSU, the men’s team finished with a higher
national ranking than the women’s team every year except one.            During
Brown’s most successful season, the men’s team was ranked second in the
nation; the highest ranking achieved by the women’s team during Minnis’s
tenure was eighteenth. Brown’s overall record for the 15 years that his time
at LSU overlapped with Minnis’s was 237-142 and his SEC record was 89-76.
Minnis’s overall record for that same time was 191-174 and his SEC record was
61-104.
                                       2
    Case: 14-31251    Document: 00513097916    Page: 3   Date Filed: 06/29/2015



                                No. 14-31251
      Throughout his employment, Minnis received written performance
evaluations. Minnis’s last evaluation was in June 2009. LSU evaluated him
based on a wide range of factors, including planning and organization,
leadership, and sports knowledge. The results of Minnis’s evaluations were
generally mixed.
      In February 2008, Judy Southard, one of Minnis’s supervisors, issued
him a written reprimand expressing “general displeasure” with Minnis’s
management of the program. Southard identified three particular incidents:
(1) making inappropriate comments about a team member, (2) failing to
properly account for expenses, and (3) a secondary NCAA violation pertaining
to Minnis’s purchase of motivational books for team members. In response to
Southard’s reprimand, Minnis complained to administrators that he believed
Southard to be a racist. The administrators told Minnis that they disagreed
and asked why he reached that conclusion. Minnis offered no facts to support
his contention and made no further allegations of racial discrimination.
      In February 2012, Minnis was reprimanded for a serious incident
involving a team member. As punishment for showing up late to a charity
event, Minnis ordered the team member to run laps. There is evidence that
Minnis was aware that the student had been drinking the night before. The
student collapsed while running and had to be resuscitated twice. In March
2012, Minnis brought in Tiffany Jones, a sports psychology consultant, to meet
with team members. During Jones’s meetings, students expressed various
complaints about Minnis’s coaching style and techniques.
      Throughout his time at LSU, Minnis regularly complained to
administrators about what he perceived to be inadequate practice facilities,
particularly the lack of an indoor facility. Brown also complained about the
lack of an indoor facility. The men’s and women’s teams used the same on-
campus outdoor facilities. Though both teams had access to the same off-
                                      3
    Case: 14-31251    Document: 00513097916     Page: 4   Date Filed: 06/29/2015



                                 No. 14-31251
campus practice facility owned by the Baton Rouge Recreation and Parks
Commission, Minnis chose to have his team practice at the Country Club of
Louisiana.
      At some point during his employment, Minnis questioned whether he
was being adequately compensated. LSU responded that it set Minnis’s salary
in accordance with his team’s ranking and on par with other SEC women’s
tennis coaches. Minnis never indicated to LSU that he believed that he was
being inadequately compensated because of his race and he conceded that he
did not know how his salary was calculated.
      LSU publicly announced on June 30, 2012 that it would not renew
Minnis’s contract. At that time, Minnis was earning $85,000 per year. Minnis
was replaced by Julia Sell, a white female. Sell signed a four-year contract
with a base salary of $110,000 per year. Sell had no prior head coaching
experience, but had some assistant coaching experience. LSU contends that
Sell received a higher salary both because it was competing with the University
of South Carolina (“USC”) to hire her and as a result of the challenges
associated with attracting a coach to a team with a losing record and morale
issues.
      Minnis filed this suit in Louisiana state court in November 2012. He
named LSU and several former supervisors as defendants. The defendants
removed the case to the United States District Court for the Middle District of
Louisiana in January 2013.      Minnis filed an amended complaint in May,
alleging a variety of state and federal claims. In September, the district court
dismissed all defendants other than LSU. The district court also dismissed all
of Minnis’s claims except those for racial discrimination, harassment, and
retaliation under Title VII; retaliation under Title IX; and discrimination and
retaliation under state law. In October 2014, the district court granted LSU’s


                                       4
    Case: 14-31251     Document: 00513097916      Page: 5    Date Filed: 06/29/2015



                                  No. 14-31251
motion for summary judgment, dismissing all of Minnis’s remaining claims
with prejudice.
                                  DISCUSSION
      We review a grant of summary judgment de novo, applying the same
standards as the district court. E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694
(5th Cir. 2014). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). There is no genuine
factual dispute “[i]f the record, taken as a whole, could not lead a rational trier
of fact to find for the nonmoving party . . . .” Dediol v. Best Chevrolet, Inc., 655
F.3d 435, 439 (5th Cir. 2011). We consider the facts and evidence in the light
most favorable to the non-moving party. Jackson v. Watkins, 619 F.3d 463,
466 (5th Cir. 2010) (per curiam).


I. Title VII discrimination claims
      First, Minnis appeals the district court’s grant of summary judgment on
his Title VII disparate compensation and discriminatory discharge claims. A
Title VII discrimination claim based on circumstantial evidence is analyzed
using the McDonnell Douglas burden-shifting framework. Davis v. Dall. Area
Rapid Transit, 383 F.3d 309, 316 (5th Cir. 2004).           To survive summary
judgment, a plaintiff must first present a prima facie case of discrimination.
Id. at 317. Once a plaintiff establishes a prima facie case, an inference of
discrimination is established. Id. The burden then shifts to the employer to
rebut the claim with a legitimate, non-discriminatory reason for the
employment action. Id. If the employer meets this burden, the inference of
discrimination disappears and the burden shifts back to the plaintiff to
establish that the employer’s proffered reason is pretextual. Id.


                                         5
    Case: 14-31251      Document: 00513097916   Page: 6   Date Filed: 06/29/2015



                                 No. 14-31251
A. Disparate compensation
      Under the McDonnell Douglas framework, to succeed on his disparate
compensation claim, Minnis must first present a prima facie case of
discrimination. To do so, he must show that: (1) “he was a member of a
protected class,” and (2) “he was paid less than a non-member for work
requiring substantially the same responsibility.” Taylor v. United Parcel Serv.,
Inc., 554 F.3d 510, 522 (5th Cir. 2008).     “An individual plaintiff claiming
disparate treatment in pay under Title VII must show that his circumstances
are nearly identical to those of a better-paid employee who is not a member of
the protected class.”     Id. at 523 (citation and internal quotation marks
omitted).
      No one disputes that Minnis is a member of a protected class. Thus, as
the district court correctly noted, the only issue at the prima facie stage is
whether Minnis was paid less than white employees for substantially the same
job responsibilities. The district court concluded that none of the other head
coaches, including Minnis’s replacement, were proper comparators. The court
then held that even assuming, arguendo, that Minnis could establish that the
other coaches were proper comparators, Minnis was still unable to rebut LSU’s
legitimate, non-discriminatory reasons for the disparity in pay. LSU asserted
the following reasons for the pay disparity: (1) Minnis did not have a
competitive record that would justify merit increases, (2) Minnis’s salary was
set by comparing his performance to that of other women’s tennis coaches in
the SEC, and (3) Minnis’s salary was calculated based on the market for the
position at the time of hiring. In response, Minnis disputed that his salary was
determined based on the salaries of other SEC women’s tennis coaches. He
also asserted that the disparity between his salary and those of the other
coaches “was so glaring” that others “took notice.”         The district court


                                       6
      Case: 14-31251       Document: 00513097916        Page: 7    Date Filed: 06/29/2015



                                      No. 14-31251
determined that Minnis’s self-serving conclusions and subjective beliefs were
insufficient to establish pretext.
           Minnis appeals the district court’s conclusion that the other head coaches
were not proper comparators. We need not consider this argument because
even if Minnis was able to establish a prima facie case, his claim still fails at
the pretext stage.
           “Once a Title VII case reaches the pretext stage, the only question on
summary judgment is whether there is a conflict in substantial evidence to
create a jury question regarding discrimination.” Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). A plaintiff “must put forward
evidence rebutting each of the nondiscriminatory reasons the employer
articulates” and must show “that a discriminatory motive more likely
motivated [the] employer’s decision . . . or that [the] employer’s explanation is
unworthy of credence.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th
Cir. 2001) (citation and internal quotation marks omitted).
           Once LSU articulated non-discriminatory reasons for the pay disparity,
the burden shifted to Minnis to rebut each of those reasons. He has not offered
any evidence beyond his subjective beliefs to meet his burden. Thus, the
district court correctly concluded that there was no genuine dispute of material
fact regarding pretext and, accordingly, Minnis’s disparate compensation claim
fails. 1




          Minnis also argues that the district court erred in holding that his disparate
           1

compensation claims, as they relate to his salary prior to 2011, are time-barred. Minnis
contends that the district court’s holding is incorrect in light of recent amendments made to
Title VII following the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co.,
550 U.S. 618 (2007). Though raised below, this argument was not addressed by the district
court. We have already determined that Minnis’s disparate compensation claim fails.
Consideration of this additional argument would not affect the outcome of this case.
                                             7
      Case: 14-31251   Document: 00513097916     Page: 8    Date Filed: 06/29/2015



                                  No. 14-31251
B. Discriminatory discharge
       Minnis’s discriminatory discharge claim is similarly analyzed using the
McDonnell Douglas burden-shifting framework. See Lee v. Kan. City S. Ry.
Co., 574 F.3d 253, 259 (5th Cir. 2009). This requires Minnis to establish first
a prima facie case of discrimination by demonstrating that:
       (1) he is a member of a protected class, (2) he was qualified for the
       position at issue, (3) he was the subject of an adverse employment
       action, and (4) he was treated less favorably because of his
       membership in that protected class than were other similarly
       situated employees who were not members of the protected class,
       under nearly identical circumstances.
Id.
       The district court discussed the fourth element as the only one in dispute.
The court held that Minnis had failed to provide sufficient evidence to evaluate
whether the head coaches of other sports were similarly situated to him, but
that there was sufficient evidence to analyze whether Minnis was similarly
situated to Brown, the men’s tennis coach. The court determined that Brown
and Minnis were treated differently because Brown had a superior win-loss
record, and therefore the two could not be considered similarly situated.
       The court then held that even assuming Minnis had established a prima
facie case, his claim still failed because he could not rebut LSU’s non-
discriminatory reasons for termination. It accepted LSU’s three proffered
reasons for terminating Minnis: (1) his failure to meet established goals, (2)
his losing record, and (3) morale issues. In response, Minnis offered evidence
of LSU’s “shifting reasons” for terminating him as supposed proof of pretext.
Minnis explained that LSU first said, without further elaboration, that he was
being fired because the school had decided to go in another direction. After
Minnis filed his Charge of Discrimination, however, LSU said that he was
being fired because of his poor performance. In addition, LSU maintained that
Minnis’s NCAA violations and the team’s morale problems also contributed to
                                    8
     Case: 14-31251       Document: 00513097916         Page: 9    Date Filed: 06/29/2015



                                      No. 14-31251
its decision to terminate Minnis. The district court held that pointing to these
“shifting reasons” did not prove pretext.
       On appeal, Minnis does not address the district court’s ruling about the
comparators and instead focuses on the district court’s alternative reasoning
that he failed to show pretext. He again argues that LSU’s allegedly shifting
reasons provide evidence of pretext. We have held that inconsistent reasons
offered at different times can create a fact issue of pretext. Gee v. Principi, 289
F.3d 342, 347–48 (5th Cir. 2002).           We conclude, though, that proof of an
employer’s reasons becoming more detailed as the dispute moves beyond the
initial notice to an employee and enters into adversarial proceedings, is
insufficient to create a jury question regarding pretext absent an actual
inconsistency. In an unpublished opinion with which we agree, we clarified
that explanations whose only difference lay in their level of generality were not
inconsistent. Hamilton v. AVPM Corp., 593 F. App’x 314, 322 (5th Cir. 2014)
(per curiam). That characterization equally applies here. 2


II. Title VII hostile work environment
       Next, Minnis appeals the district court’s dismissal of his hostile work
environment claim. To establish a race-based hostile work environment claim
under Title VII, a plaintiff must show that he:


       2 Minnis relies on a Seventh Circuit case to support his pretext argument. See Peirick
v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681 (7th Cir. 2007). There,
a female coach sued her former university employer after she was terminated, alleging sex
discrimination. Id. at 684. Based on the university’s “suspect” reasons for terminating the
coach, the court held that the coach had sufficiently shown that there was a question of fact
as to pretext. Id. at 692–94. The court emphasized that the coach had never been disciplined
prior to termination, had never been cited for an NCAA violation, and had outperformed her
colleagues. Id. Minnis argues that LSU, similarly, did not discipline him until after he was
terminated and that his colleagues, like those in Peirick, were baffled by his termination.
Contrary to Minnis’s arguments, Peirick is factually distinct. Minnis was reprimanded on
several occasions, received negative feedback in several performance evaluations, had a poor
performance record, and had several NCAA violations.
                                             9
   Case: 14-31251     Document: 00513097916      Page: 10   Date Filed: 06/29/2015



                                  No. 14-31251
      (1) belongs to a protected group; (2) was subjected to unwelcome
      harassment; (3) the harassment complained of was based on race;
      (4) the harassment complained of affected a term, condition, or
      privilege of employment; [and] (5) the employer knew or should
      have known of the harassment in question and failed to take
      prompt remedial action.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012). For
purposes of the fourth element, “[h]arassment affects a term, condition, or
privilege of employment if it is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.”    Id. (citation and internal quotation marks omitted).           In
considering whether a workplace constitutes an abusive work environment,
this court must look at the totality of the circumstances, including the following
relevant factors: “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (citation
and internal quotation marks omitted). Furthermore, “the conduct must be
both objectively offensive, meaning that a reasonable person would find it
hostile and abusive, and subjectively offensive, meaning that the victim
perceived it to be so.” Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 330 (5th
Cir. 2009) (citation and internal quotation marks omitted).
      The district court determined that Minnis failed to establish a hostile
work environment claim because he failed to show conduct that affected a
term, condition, or privilege of employment. In analyzing the claim, the court
considered only Minnis’s 2012 reprimand, which was issued in response to the
events involving the intoxicated student who collapsed at a charity event. The
court refused to consider Minnis’s evaluations or the 2008 reprimand,
explaining that they were time-barred. The court concluded that the 2012
reprimand, on its own, was insufficient to create a hostile work environment.
                                      10
    Case: 14-31251     Document: 00513097916    Page: 11   Date Filed: 06/29/2015



                                 No. 14-31251
      On appeal, Minnis argues that the district court erred in refusing to
consider the evaluations and 2008 reprimand. Minnis notes that the Supreme
Court has “rejected a notion of parsing incidents, one from another, for
purposes of a hostile environment claim.” See Ledbetter v. Goodyear Tire &
Rubber Co., 550 U.S. 618, 638 (2007). LSU responds that the district court
correctly excluded the evaluations and 2008 reprimand, but even if they had
been considered, Minnis’s hostile work environment claim would still fail
because the combination of acts about which Minnis complains is neither
severe nor pervasive enough to have created a hostile work environment.
      It is unnecessary for us to decide whether the district court erred in
refusing to consider the additional evidence because even with the evaluations
and 2008 reprimand, Minnis still has not shown a race-based hostile work
environment. First, Minnis has not shown that any of the evaluations or
reprimands constitute harassment based on race. See Hernandez, 670 F.3d at
651; Ramsey, 286 F.3d at 268. He also has not shown that the conduct “affected
a term, condition, or privilege of employment . . . .” See Ramsey, 286 F.3d at
268. Based on the totality of the circumstances, the combination of alleged acts
does not constitute a hostile work environment because he has not shown that
the acts were “sufficiently severe or pervasive to alter the conditions of [his]
employment and create an abusive working environment.” Id. (citation and
internal quotation marks omitted).          Accordingly, Minnis’s claim fails
regardless of whether the additional evaluations and reprimand are
considered.


III. Title IX retaliation
      Minnis also contends that the district court applied the wrong legal
standard in analyzing his Title IX retaliation claim. In setting out the legal
standard, the district court explained: “To establish a prima facie case of Title
                                       11
    Case: 14-31251      Document: 00513097916         Page: 12   Date Filed: 06/29/2015



                                       No. 14-31251
IX retaliation, a plaintiff must show that he or she participated in activity
protected by Title IX and that the defendant took an adverse action against
him or her because of that activity.”           The district court then stated that
although this court has not “directly addressed” whether the Title VII burden-
shifting framework should be utilized in Title IX cases, many other circuits
“have looked to Title VII as the appropriate analog for the legal standards in
Title IX claims.”      The court then applied the Title VII burden-shifting
framework to Minnis’s Title IX retaliation claim.
      Minnis now contends that the Title VII standard should not have been
applied to his Title IX claim. In particular, the “because” standard should not
have been applied. According to Minnis, instead of being required to show that
he was retaliated against because he complained of sex discrimination, he
should only be required to show that the complaint was “a motivating factor,”
potentially among others, in the retaliation. He asserts that this is an issue of
first impression for this court.
      What the district court stated was that the applicability of the Title VII
burden-shifting framework to Title IX claims is unsettled. The court never
suggested that what is required to establish a prima facie case of Title IX
retaliation is uncertain. The argument that the district court erred in applying
the “because” causation standard goes to Minnis’s prima facie case.                The
Supreme Court has held that the “because” standard applies at the prima facie
stage. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005)
(“[W]hen a funding recipient retaliates against a person because he complains
of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis
of sex,’ in violation of Title IX”).
      Moreover, Minnis’s claim fails regardless of what standard is applied.
The district court held that Minnis had failed to show that he had made any
Title IX complaints. The court explained that Minnis’s complaints about LSU’s
                                           12
   Case: 14-31251     Document: 00513097916      Page: 13   Date Filed: 06/29/2015



                                 No. 14-31251
on-campus facilities were not Title IX complaints because both the men’s and
women’s coaches complained about the facilities and, although Minnis also
complained about the off-campus facility, he is the one who selected it, and he
had access to the same off-campus facility as the men’s team. On appeal,
Minnis contends that his complaints differed from Brown’s complaints because
Minnis is the only one who put his complaints in writing. Minnis’s argument
is unconvincing. He has not shown that his complaints were related to gender
inequality and thus has not shown that he engaged in activity protected by
Title IX. Thus, regardless of what standard is applied, Minnis’s claim fails
because he cannot establish a key element of his prima facie case.


IV. Title VII retaliation and state-law claims
      Throughout his brief, Minnis asserts that he is appealing the district
court’s holding on his Title VII retaliation claim. The district court determined
that Minnis had failed to demonstrate that he engaged in any activity
protected by Title VII, and even if he had, there was no evidence of a causal
link between that activity and his termination. The court went on to explain
that even if Minnis had established a prima facie case of retaliation, he still
could not rebut LSU’s legitimate non-discriminatory reasons for its
employment decision. Minnis makes no argument with respect to the district
court’s holding that he failed to establish a prima facie case of Title VII
retaliation and has therefore waived review of this issue. “A party that asserts
an argument on appeal, but fails to adequately brief it, is deemed to have
waived it. It is not enough to merely mention or allude to a legal theory.”
United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (citations and
internal quotation marks omitted). The same is true with respect to Minnis’s
state-law claims. Though Minnis contends that he is appealing the district


                                       13
   Case: 14-31251   Document: 00513097916    Page: 14   Date Filed: 06/29/2015



                              No. 14-31251
court’s holding on those claims, he advances no legal argument. They are
likewise waived.
     AFFIRMED.




                                   14
