Case: 17-60856 Document: 00515696581 Page: 1 Date Filed: 01/06/2021
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60856 January 6, 2021
Lyle W. Cayce
DENISE TAYLOR-TRAVIS, Clerk
Plaintiff–Appellee Cross-Appellant,
v.
JACKSON STATE UNIVERSITY,
Defendant–Appellant Cross-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:12-CV-51
Before OWEN, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PRISCILLA R. OWEN, Chief Judge:
Denise Taylor-Travis sued Jackson State University after the university
terminated her employment. She alleged violations of Title VII of the Civil
Rights Act of 1964 and Title IX of the Education Amendments of 1972, and she
brought state-law claims for breach of contract, breach of the implied covenant
of good faith and fair dealing, and invasion of privacy. A jury awarded Taylor
$182,000 for her breach of contract claim but found no liability on her claim for
breach of the implied covenant of good faith and fair dealing and found no
violations of Title VII or Title IX. The district court found in favor of Taylor on
her invasion of privacy claim and awarded her $200,000. Jackson State
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appeals the breach of contract and privacy awards, and Taylor appeals the
Title IX retaliation verdict, contending the jury instructions were infirm. We
affirm the district court’s judgment as to the breach of contract and Title IX
claims and reverse as to the privacy claim.
I
Jackson State University hired Denise Taylor-Travis as the head coach
of the women’s basketball team in 2001. Her employment agreement was
subsequently extended through 2013. In March 2011, several members of
Taylor’s team began complaining about mistreatment by Taylor. The team
specifically mentioned the following conduct:
1. having student–athletes sign blank meal vouchers;
2. telling student–athletes that their meal money is based on their
performance during games;
3. verbally abusing student–athletes;
4. removing student–athletes from the team’s travel list to provide
her husband and son airline tickets;
5. questioning student–athletes about their sexual orientation
and the sexual orientation of their teammates;
6. leaving one student–athlete in the parking lot and another in
the athletic training room of the host institution while on travel
in another city;
7. sharing a personal and confidential conversation with one
student–athlete with other student–athletes;
8. limiting a student–athlete’s playing time because the student–
athlete would not change her schedule to accommodate the
team’s scheduled practice time; and
9. drinking alcohol while away on travel with the team.
After Jackson State President Carolyn Meyers was informed of the
complaints against Taylor, she requested that the university’s internal auditor
investigate. Taylor was placed on administrative leave with pay pending the
outcome of Jackson State’s investigation. Jackson State’s internal auditor
found that Taylor violated the Athletic Department’s Policies and Procedure
Manual on multiple occasions by misallocating and misusing university funds.
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In sum, the auditor concluded that Taylor owed Jackson State $4,544.44 for
misappropriating university funds.
Following the completion of the audit, Jackson State sent Taylor a notice
of intent to terminate her employment for cause. A few days later, Taylor’s
counsel responded with a letter requesting arbitration. Taylor’s employment
was officially terminated on June 29, 2011. At that time, Taylor had two years
and $182,000 remaining on her contract. Jackson State sent another letter the
next day, contending that the arbitration provision in Taylor’s employment
contract was unenforceable.
Before Taylor’s employment was officially terminated, a local newspaper,
The Clarion-Ledger, sent Jackson State a public records request seeking
information regarding communications between the university and Taylor.
Jackson State withheld numerous documents as privileged under Mississippi
law, but ultimately provided the newspaper with nine pages of information
regarding Taylor. Three days later, The Clarion-Ledger posted on its online
blog that Jackson State had terminated Taylor’s employment for several
reasons, including sexual gender stereotyping, verbal abuse, and
misappropriation of university funds.
Taylor sued Jackson State, claiming: (1) breach of contract; (2) breach of
the implied covenant of good faith and fair dealing; (3) invasion of privacy; and
(4) sex discrimination and retaliation under Title VII of the Civil Rights Act of
1964 and Title IX of the Education Amendments of 1972. Each of the claims
except for invasion of privacy were tried before a jury. After a six-week trial,
the jury returned a verdict (1) awarding Taylor $182,000 on her breach of
contract claim; (2) awarding Taylor $0 on her claim for breach of an implied
covenant of good faith and fair dealing; and (3) finding for Jackson State on the
Title VII and Title IX claims. As for the invasion of privacy claim, the district
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court found that Jackson State was liable and awarded Taylor $200,000 in
damages. 1
After the district court entered final judgment, Jackson State filed a
motion for judgment as a matter of law or, in the alternative, for a new trial or
a remittitur of damages on the breach of contract and invasion of privacy
claims. Taylor then filed a motion for new trial regarding her Title IX
retaliation claim, contending that the district court improperly instructed the
jury on causation. The district court denied both motions. 2 Both parties
appeal.
II
Jackson State asks the court to reverse and render judgment in its favor
on Taylor’s breach of contract claim, or, alternatively, to order a new trial of
that claim before a different district judge.
A
Jackson State argues that Taylor’s breach of contract claim fails because
Taylor never showed that Jackson State breached Taylor’s employment
contract. We review a grant or denial of a motion for judgment as a matter of
law de novo. 3 “Judgment as a matter of law is appropriate if ‘there is no legally
sufficient evidentiary basis for a reasonable jury to find for [a] party on [an]
issue.’” 4 “Reviewing all of the evidence in the record, a ‘court must draw all
reasonable inferences in favor of the nonmoving party, and it may not make
1 Taylor-Travis v. Jackson State Univ., No. 3:12-CV-51-HTW-LRA, 2014 WL
12779207, at *10 (S.D. Miss. Aug. 1, 2014).
2 Taylor-Travis v. Jackson State Univ., No. 3:12-CV-51-HTW-LRA, 2017 WL 6604567,
at *20 (S.D. Miss. Dec. 22, 2017).
3 Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 918
(5th Cir. 2002) (citing Stokes v. Emerson Elec. Co., 217 F.3d 353, 356 (5th Cir. 2000)).
4 Id. (alterations in original) (citation omitted); see also FED. R. CIV. P. 50(a)(1) (stating
that a court may grant judgment as a matter of law if “the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find for the party on that issue”).
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credibility determinations or weigh the evidence.’” 5 “[T]he court ‘must
disregard all evidence favorable to the moving party that the jury is not
required to believe.’” 6
Taylor’s claim for breach of contract hinges on her contention that
Jackson State lacked cause to terminate her employment. Under the terms of
Taylor’s contract, if Jackson State terminated Taylor without cause, it was
required to pay her “the remaining amount owed to [her] under” the contract.
Conversely, if Jackson State terminated Taylor for cause, Jackson State was
“obligated to pay [her] all amounts owing up to the date of termination only.”
Taylor contends that Jackson State breached its contract with her by
terminating her without cause and not paying her the entire amount owed
under the contract.
The contract defined “cause” as:
(i) deliberate, serious and willful violations of Head Coach’s
duties defined in the Agreement or refusal or unwillingness to
perform such duties in good faith; or
(ii) any conduct of Head Coach in violation of an applicable
criminal statute; or
(iii) knowingly committing or condoning a major violation or a
pattern of uncorrected secondary violations of NCAA rules
and/or conference rules.
The contract also provided that “involvement in a deliberate and serious
violation of any law, regulation, rule, by-law, policy or constitutional provision
of the State of Mississippi, the Board, the NCAA, conference or any other
governing authority may result in suspension without pay and/or termination
of this contract.”
5 Industrias, 293 F.3d at 918 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000)).
6 Id. (quoting Reeves, 530 U.S. at 151).
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Jackson State argues that the undisputed evidence establishes that
Taylor engaged in conduct that gave Jackson State cause to fire her, including
misappropriating funds in violation of the school’s travel and reimbursement
policies and mistreating student–athletes. We disagree.
The evidence regarding player mistreatment conflicted. Taylor testified
that she did not mistreat her players and that any allegation to the contrary
was “absolutely false.” Taylor specifically stated that she has “no problem with
what [a student–athlete’s] sexual preference is,” that she recruited many
players knowing their “alternative lifestyle,” and that she has “absolutely
not . . . ever treated a player that lived the alternative lifestyle any different.”
The record contains evidence contradicting Taylor’s testimony. However,
Taylor’s testimony provides legally sufficient evidence for the jury’s conclusion
that Taylor did not mistreat her players in a manner that gave Jackson State
cause to fire her.
Likewise, the jury’s determination that Jackson State did not have cause
to terminate Taylor for misappropriating funds was based on legally sufficient
evidence. Even if the evidence showed that Taylor misappropriated funds,
doing so only gave Jackson State cause to fire her if the misappropriations
amounted to “deliberate, serious and willful violations of [Taylor’s] duties
defined in the Agreement or refusal or unwillingness to perform such duties in
good faith.” Taylor presented evidence that she engaged in the complained of
fund-management activities pursuant to the instructions of Jackson State’s
business manager, that she had previously engaged in the same activities
without objection from the university, and that male coaches engaged in the
same activities without reprimand. Drawing all reasonable inferences in favor
of Taylor, the jury had sufficient evidence to conclude that any policy violation
was not “deliberate, serious and willful” and that Taylor performed her duties
“in good faith.” A reasonable jury could have concluded that Taylor’s
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management of funds did not give Jackson State cause to terminate her
employment.
B
Jackson State argues that, at a minimum, it should be granted a new
trial on Taylor’s breach of contract claim. Jackson State argues that the
district court erroneously excluded a proposed jury instruction and abused its
discretion in its overall handling of the case.
1
Jackson State proposed the following jury instruction: “In deciding
whether Jackson State was justified in its decision to terminate Plaintiff, you
may not consider Plaintiff’s length of employment or Jackson State’s failure to
discover Plaintiff’s misconduct sooner. You also must not consider whether
Jackson State has tolerated similar misconduct by other employees.”
This court reviews a refusal to provide a requested jury instruction for
abuse of discretion. 7 “[T]he district court’s refusal to give a requested jury
instruction constitutes reversible error ‘only if the instruction 1) was a
substantially correct statement of law, 2) was not substantially covered in the
charge as a whole, and 3) concerned an important point in the trial such that
the failure to instruct the jury on the issue seriously impaired the [party’s]
ability to present a given [claim].’” 8
The district court did not abuse its discretion by refusing to give Jackson
State’s proposed instruction because it was not a substantially correct
statement of law. Jackson State argues that a 1990 Mississippi Supreme Court
case, Hoffman v. Board of Trustees, Eastern Mississippi Junior College,
7 Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 578 (5th Cir. 2004) (quoting
United States v. McClatchy, 249 F.3d 348, 356 (5th Cir. 2001)).
8 Id. (second and third alteration in original) (quoting McClatchy, 249 F.3d at 356).
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supports its instruction. 9 In Hoffman, the Mississippi Supreme Court stated
that the issue before the court was whether Hoffman breached his contract,
not “whether [Hoffman’s] employer has failed to act upon similar past
deficiencies.” 10 But here, unlike in Hoffman, 11 the question of breach
implicates Jackson State’s past handling of similar situations because the jury
had to decide whether Taylor performed her duties in good faith and whether
any violations she committed were deliberate, serious, and willful. Thus,
Hoffman is not on point. The district court did not abuse its discretion in
declining to give Jackson State’s proposed instruction.
2
Jackson State argues that the district court’s overall conduct in this case
justifies a new trial on the breach of contract claim, or, if the panel remands,
transfer to a different judge. Jackson State contends that the district court
abused its discretion by allowing the arbitration provision in Taylor’s contract
to become an issue at trial and by questioning witnesses in a manner that
suggested partiality toward Taylor.
The district court is afforded broad discretion in handling trial procedure
and the conduct of trial. 12 “However, discretion has its limits.” 13 We must
decide whether the cumulative effect of the district court’s decisions and
conduct amounted to an abuse of the court’s broad discretion. 14 Furthermore,
9 567 So. 2d 838 (Miss. 1990).
10 Id. at 842.
11 See id. at 839-40 (listing grounds for termination without mentioning an intent
requirement).
12 Sims v. ANR Freight Sys., Inc., 77 F.3d 846, 849 (5th Cir. 1996).
13 Id.
14 Id.
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even if the district court abused its discretion in making an evidentiary ruling,
we will affirm that ruling if the district court’s error was harmless. 15
Assuming, arguendo, that the district court erred in allowing Taylor to
present evidence regarding the arbitration provision, that error was harmless.
The district court instructed the jury that breach of the arbitration provision
“cannot support a breach of contract determination.” The district court stated
that Taylor was not “seeking to recover any sum of money for an alleged breach
of the alleged arbitration clause.” The district court reiterated that the
arbitration issue should only be considered with regards to the Title VII and
Title IX claims, which the jury rejected. Further, the district court explained
precisely how the jury could reach a verdict for Taylor on the breach of contract
claim—by finding that Jackson State did not have cause to fire her. Any error
was harmless and does not justify ordering a new trial.
Jackson State also argues that the district court improperly challenged
the credibility of witnesses in front of the jury. Jackson State did not object at
trial, so we review for plain error. 16 “Plain error review requires four
determinations: whether there was error at all; whether it was plain or
obvious; whether the defendant has been substantially harmed by the error;
and whether this court should exercise its discretion to correct the error in
order to prevent a manifest miscarriage of justice.” 17 Generally, a judge “may
comment on the evidence . . . [and] question witnesses and elicit facts not yet
adduced or clarify those previously presented,” but must do so in a neutral
15 Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 581 (5th Cir. 2004) (quoting
Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 660 (5th Cir. 2002)).
16 Rojas v. Richardson, 713 F.2d 116, 117 (5th Cir. 1983).
17 United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir 2012) (citing United
States v. Olano, 507 U.S. 725 (1993); United States v. Infante, 404 F.3d 376, 394 (5th Cir.
2005)).
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manner. 18 The question for this court is whether the district court “stray[ed]
from neutrality” in its interactions with witnesses. 19
Jackson State contends that the district court did not act with neutrality
when interacting with two witnesses. First, the court questioned Marchetta
Parker, a member of Taylor’s team, who accused Taylor of sexual harassment.
The court questioned Parker about what Taylor did, if anything, that Parker
believed amounted to sexual harassment. Jackson State claimed that it had
cause to fire Taylor because she sexually harassed her players. Asking a player
to clarify how she was harassed when the question of harassment was before
the jury does not constitute plain error.
Second, Jackson State argues that the district court questioned
Shaneese McLin, another member of Taylor’s team, in a manner that
suggested that McLin had discussed her testimony with other witnesses. The
court asked her about instances, brought up on cross-examination, when
McLin dined and visited with other team members during trial. A judge is
permitted to clarify facts previously presented by a witness. 20 The court’s
questioning does not amount to plain error. Moreover, if the court’s
questioning created any more prejudice than McLin’s cross-examination, it
was slight. Therefore, even if the court erred in its questioning, that error did
not affect Jackson State’s substantial rights. 21
Further, the district court instructed the jury that “you may not rely
upon any impressions that you have as to the court’s view of the facts in this
case.” The court specifically admonished the jury not to draw any conclusions
from its questioning of any witnesses, stating that “you, the jury, would not
18 Moore v. United States, 598 F.2d 439, 442 (5th Cir. 1979) (citations omitted).
19 Id.
20 Id. (citation omitted).
21 See United States v. Bermea, 30 F.3d 1539, 1571 (5th Cir. 1994).
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have any idea as to why I asked some of those questions.” We have held that
a curative instructions like those given by the district court operate against a
finding of plain error. 22 Considering the record as a whole, the district court’s
questioning of witnesses does not constitute plain error or grounds for a new
trial.
III
Jackson State argues that this court should reverse and render judgment
on Taylor’s privacy claim because she failed to prove any element of her claim.
We conclude that Taylor’s privacy claim fails as a matter of law.
For matters tried to the bench, “we review a trial court’s findings of fact
for clear error and its conclusions of law de novo.” 23 “Under clear error review,
if the trial court’s factual findings are ‘plausible in light of the record viewed
in its entirety, we must accept them, even though we might have weighed the
evidence differently if we had been sitting as a trier of fact.’” 24
Taylor argues that Jackson State invaded her privacy when it released
documents to The Clarion Ledger regarding her potential termination.
Jackson State released nine pages of documents related to Taylor. Five of
those pages related to Taylor’s complaint that Jackson State supported men’s
teams and coaches to a greater degree than her team. Those five pages did not
mention any allegations against Taylor. The remaining four pages apprised
Taylor of the allegations against her, notified Taylor that she was being placed
on administrative leave, and informed Taylor that the university intended to
terminate her employment. The allegations were described as:
• Student and Student-Athlete Well-Being
United States v. Lankford, 196 F.3d 563, 573 (5th Cir. 1999); Bermea, 30 F.3d at
22
1571-72; see also Richmond v. Horace Mann Ins. Co., 480 F. App’x 747, 749-50 (5th Cir. 2010).
23 Ali v. Stephens, 822 F.3d 776, 783 (5th Cir. 2016) (citing Garner v. Kennedy, 713
F.3d 237, 242 (5th Cir. 2013)).
24 Id. (quoting Anderson v. Sch. Bd. of Madison Cty., 517 F.3d 292, 296 (5th Cir. 2008)).
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-Sexual Orientation Harassment/Gender Stereotyping
-Emotional and Verbal Abuse
• Violation of University Policy
-Per diem Policy
-Travel and Reimbursement Policy
• Misappropriation of University Funds
-Per diem to Family Member
-Handling of Laundry Money
-Airline Ticket Purchase for Family Member(s)
• Academic Standards and Practices of the Program
-Forcing and or coercing student-athletes to change class
schedules
-Threats of punitive outcomes for failure to keep athletic
obligations (i.e., practice) vs. academic obligations (attending
class).
Taylor claims that Jackson State invaded her privacy by publicly
disclosing private facts about her life. The Second Restatement of Torts, which
has been adopted by Mississippi, 25 provides:
One who gives publicity to a matter concerning the private life of
another is subject to liability to the other for invasion of his
privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public. 26
Accordingly, to recover on her claim for invasion of privacy, Taylor must prove
(1) that Jackson State gave publicity to private facts (2) that would be highly
offensive to a reasonable person and (3) that were not of legitimate concern to
the public.
Because we conclude that the facts disclosed by Jackson State were of
legitimate concern to the public, we reverse the district court’s judgment. The
Second Restatement provides that “[o]ne who voluntarily places himself in the
public eye, by engaging in public activities, or by assuming a prominent role in
25Franklin Collection Serv., Inc. v. Kyle, 955 So. 2d 284, 291 (Miss. 2007); Young v.
Jackson, 572 So. 2d 378, 382 (Miss. 1990).
26 RESTATEMENT (SECOND) OF TORTS § 652D (AM. LAW INST. 1977).
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institutions . . . having general . . . social or similar public interest . . . cannot
complain when he is given publicity that he has sought.” 27 Further, “publicity
to information concerning either voluntary or involuntary public figures is not
limited to the particular events that arouse the interest of the public.” 28 That
interest can extend “to further information concerning the individual and to
facts about him, which are not public and which, in the case of one who had
not become a public figure, would be regarded as an invasion of his purely
private life.” 29 This case fits clearly within that realm. Taylor admitted that
as a head coach at a major public university, she was in the public eye. The
public’s interest extends to the reason for her termination.
The Second Restatement also provides that “matters of the kind
customarily regarded as ‘news’” are within the scope of legitimate public
concern. 30 Once again, Taylor admitted that the media had an interest in the
events surrounding her termination. She stated that it is the media’s
responsibility “to report [on] any sports or activities . . . going on” at
Mississippi universities. When asked if her termination was a matter of public
interest, she answered, “Correct.” We agree.
The district court determined that the information released by Jackson
State was of interest to the public but was not a matter of legitimate concern. 31
The court concluded that the documents fell within the Mississippi Public
Records Act’s exception for “personnel records” and that Jackson State violated
27 Id. § 652D cmt. e.
28 Id. § 652D cmt. h.
29 Id.
30 Id. § 652D cmt. g; see also City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004)
(defining public concern in the First Amendment context as “something that is a subject of
legitimate news interest; that is, a subject of general interest and of value and concern to the
public at the time of publication”).
31 Taylor-Travis v. Jackson State Univ., No. 3:12-CV-51-HTW-LRA, 2014 WL
12779207, at *6-8 (S.D. Miss. Aug. 1, 2014).
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its own policies by releasing the documents. 32 However, this is a common-law
invasion of privacy claim and not a claim for violation of the Mississippi Public
Records Act. Regardless of the alleged statutory violation, Taylor still had to
prove the elements of the claim she brought. Also, whether Jackson State
violated its own policy has no bearing on whether the information it released
constitutes a legitimate public concern. A public employee’s termination for,
among other things, allegedly using public funds for private matters is a
matter of legitimate concern to the public. The district court clearly erred in
finding otherwise. Taylor’s privacy claim fails as a matter of law.
IV
Taylor seeks a new trial on her Title IX retaliation claim, arguing that
the district court abused its discretion when it excluded her proposed jury
instruction on causation. Taylor requested that the court give the jury a “but-
for” causation instruction. She argues that the district erred when it
instructed the jury that Taylor may prevail if the jury finds “that she was
terminated solely as a consequence of complaints alleging noncompliance with
the substantive provisions of Title IX.” As discussed above, to prevail on
appeal, Taylor’s instruction must have been a correct statement of the law, not
covered in the charge as a whole, and related to an important part of the trial
that impaired her ability to present her claim. 33
The parties dedicate their briefs to discussing the continued validity of
this court’s statement in Lowrey v. Texas A&M University System that
plaintiffs may bring a retaliation claim under Title IX if an employee “suffer[s]
unlawful retaliation solely as a consequence” of Title IX complaints. 34 Taylor
argues that the combination of three Supreme Court decisions overruled
32 Id. at *8.
33 Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 578 (5th Cir. 2004).
34 117 F.3d 242, 254 (5th Cir. 1997).
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Lowrey and implemented a but-for causation standard for all retaliation
claims. Jackson State argues that Lowrey remains good law because two of the
Supreme Court cases cited by Taylor did not address Title IX retaliation claims
and the third did not clarify whether the Title IX complaint has to be the sole
reason for the adverse employment action.
What neither party considers is whether Lowrey actually imposed a sole
causation standard. A closer look at Lowrey reflects that it did not. In Lowrey,
this court considered whether 34 C.F.R. § 100.7(e), the regulation
implementing and enforcing Title IX, created “an implied private right of
action to vindicate [its] anti-retaliation provisions.” 35 The Lowrey court
recognized that under Lakoski v. James, 36 Title VII provides the exclusive
remedy for individuals alleging employment discrimination on the basis of sex
in federally funded educational institutions. 37 The court explained that
although Title VII preempts “a private right of action for employment
discrimination under title IX,” Title VII “does not prohibit retaliation against
complainants who challenge the misallocation of resources in violation of title
IX, as such complaints are wholly unrelated to the discriminatory employment
practices proscribed by title VII.” 38 Thus, for a Title IX retaliation claim, courts
must “‘strip away’ any allegations that would support a private cause of action
for retaliation under title VII” and “distinguish between retaliation suffered by
[the plaintiff] as a consequence of her participation in complaints and
investigations challenging alleged employment discrimination by [the
university] and retaliation suffered as a consequence of her participation in
complaints and investigations challenging alleged violations of title IX.” 39 The
35 Id. at 249-50.
36 66 F.3d 751 (5th Cir. 1995).
37 Lowrey, 117 F.3d at 247.
38 Id. at 249.
39 Id. at 247.
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language seized on by the parties appears in a one-sentence summary of the
court’s legal conclusion included at the end of the opinion, which states “34
C.F.R. § 100.7(e) implies a private right of action for retaliation, narrowly
tailored to the claims of employees who suffer unlawful retaliation solely as a
consequence of complaints alleging noncompliance with the substantive
provisions of title IX.” 40
Reading the phrase “solely as a consequence of complaints alleging
noncompliance with the substantive provisions of title IX” as establishing a
sole causation standard stretches Lowrey too far. Lowrey examined whether a
Title IX retaliation claim could be based on a complaint about conduct
prohibited by Title VII and held that it could not. Lowrey did not focus on the
causation standard in Title IX retaliation claims. To the extent that it
addressed that issue, Lowrey stated that “the anti-retaliation provision of title
IX is similar to those of title VII and the ADEA and should be accorded a
similar interpretation.” 41 Accordingly, Lowrey did not announce a sole
causation standard for Title IX retaliation claims; it suggested that the
causation standard for Title IX claims should be the same as the causation
standard for Title VII claims while clarifying that complaints about conduct
barred by Title VII could not form the basis of a Title IX claim.
Regardless, a new trial is not warranted because the district court’s
instruction “substantially covered” 42 the correct standard: that there must be
a “causal connection” between the Title IX complaint and the adverse
employment action. 43 The district court gave the following instruction on the
Title IX claim:
40 Id. at 254.
41 Id. at 252 n.18.
42 See Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 578 (5th Cir. 2004).
43 Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (stating that, to recover under
Title VII, a plaintiff must show that “a causal link exists between the protected activity and
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To establish a claim of retaliation under Title IX, plaintiff
must demonstrate the following by a preponderance of the
evidence: One, protected activity under Title IX; two, an adverse
employment action; and three, a causal connection between the
two, that is, a causal connection between exercise of the protected
activity under Title IX and an adverse employment action.
Because a Title IX retaliation claim only covers conduct
protected by Title IX, the plaintiff may prevail only if you, the jury,
find that she was terminated solely as a consequence of complaints
alleging noncompliance with the substantive provisions of Title IX.
It is not enough that you may believe plaintiff was terminated for
complaints related to her own individual employment, for that is
not protected activity covered by Title IX.
Even if you find that plaintiff engaged in conduct protected
by Title IX, plaintiff also bears the burden of proving a causal link
between the two, between any Title IX protected activity and
termination of her employment. Her subjective belief is
insufficient to prove that protected activity under Title IX resulted
in her termination. Again, the plaintiff here would have to prove
this matter before you.
The district court’s instruction substantially covered the causation
standard. The first paragraph states that the plaintiff must show “a causal
connection between exercise of the protected activity under Title IX and an
adverse employment action” without elaborating upon what qualifies as a
“causal connection.” Similarly, the third paragraph states that a plaintiff must
prove a “causal link” between the protected activity and termination of her
employment without further elaboration. Neither paragraph one nor
paragraph three contains language that would lead a jury to believe that the
protected activity must be the sole reason for Taylor’s termination.
the adverse employment action”); Lowrey, 117 F.3d at 252 n.18 (“[T]he anti-retaliation
provision of title IX is similar to those of title VII and the ADEA and should be accorded a
similar interpretation.”); see also Collins v. Jackson Pub. Sch. Dist., 609 F. App’x 792, 795
(5th Cir. 2015) (per curiam) (“To establish a prima facie case of retaliation [under Title IX],
the plaintiff must show that . . . a causal connection exists between the protected activity and
the adverse employment action.”).
17
Case: 17-60856 Document: 00515696581 Page: 18 Date Filed: 01/06/2021
No. 17-60856
While the second paragraph states that Taylor can only prevail if she
was terminated “solely as a consequence of complaints alleging noncompliance
with the substantive provisions of Title IX,” that statement must be read in
context of the entire paragraph. The role of the second paragraph was not to
modify the requisite causal connection between Taylor’s protected activity and
her termination—a topic addressed in paragraphs one and three—but to
explain Lowrey’s holding that a Title IX retaliation claim cannot be based on
Title VII-related “complaints related to [Taylor’s] own individual employment.”
Accordingly, the statement that Taylor can only prevail if she was terminated
“solely as a consequence of complaints alleging noncompliance with the
substantive provisions of Title IX” should be read as distinguishing complaints
about noncompliance with Title IX from “complaints related to [Taylor’s] own
individual employment,” not as establishing a causation standard.
Consequently, while the district court’s instruction is not a model of clarity, it
did not impose a heightened causation standard. Denying Taylor’s proposed
jury instruction was not an abuse of discretion or grounds for a new trial.
* * *
For the foregoing reasons, we AFFIRM the district court’s judgment
regarding the breach of contract claim and the Title IX retaliation claim. We
REVERSE the district court’s judgment on Taylor’s invasion of privacy claim
and REMAND to the district court with instructions to enter judgment in favor
of Jackson State on that claim.
18
Taylor-Travis v. Jackson State Univ
Combined Opinion