By Robert J. Romano, JD LLM, Assistant Professor, St. John’s University
Last October, former Texas Tech University head women’s basketball coach, Marlene Stollings, filed a federal lawsuit against her former employer alleging she was wronged, discriminated against, and victimized by the University, the University’s Athletic Department and specifically, its Athletic Director, Kirby Hocutt. Coach Stollings’ complaint included a breach of contract claim, a fraud claim, and fraudulent inducement claim, together with Title VII and Title IX claims, all alleging she was unlawfully terminated by the University back on August 6, 2020.[1] She also brought additional counts against Mr. Hocutt in his individual capacity for defamation and intentional interference with a contract. [2]
The Defendants collectively moved to dismiss its former Coach’s complaint in its entirety and the U.S. District Court for the Northern District of Texas granted their motion with regards to the breach of contract, fraud, and fraud in the inducements counts, but denied it as to the Title VII and Title IX claims. The breach of contract, fraud, and fraud in the inducement claims were dismissed because the District Court held that Texas Tech University, a public university, enjoys the benefit of sovereign immunity. The District Court dismissed these counts based upon the following rational:
“The Fifth Circuit has previously held that a state university-more specifically, Texas Tech University-is an arm of the state and enjoys sovereign immunity. Wallace v. Texas Tech Univ. 80 F.3d 1042, 1047 (5th Cir. 1996) (“Texas Tech, as a state institution, clearly enjoys Eleventh Amendment immunity.”); United States v. Texas Tech Univ., 171 F.3d 279, 289 (5th Cir. 1999). Therefore, under Fifth Circuit precedent, the university at issues here is an arm of the state.”[3]
Interestingly, and perhaps most importantly, the Title VII sex discrimination and the Title IX retaliation claims were allowed to move forward. First, the District Court, as per Federal Rule of Civil Procedure 12(b)(6), wherein a court must accept sufficiently plead factual matters as true, found that Stollings’ Title VII allegations were sufficient to demonstrate less favorable treatment and therefore denied the defendant’s motion to dismiss with respect to this count.
As the District Court noted, Title VII makes it unlawful for an employer to discharge any individual, or otherwise discriminate against any individual, because of the individual’s sex.[4] Specifically, an employer, in this case Texas Tech University, cannot “limit, segregate, or classify [its] employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s . . . sex.”[5] To put it another way, “an employer who intentionally treats a person worse because of sex – such as by firing the person for actions or attributes it would tolerate in an individual of another sex – discriminates against that person in violation of Title VII.”[6] Additionally, the U.S Supreme Court held recently that for the purposes of Title VII, sex may also include an individual’s sexual orientation.[7]
The District Court determined that Coach Stollings’ assertions that Texas Tech engaged in discriminatory conduct, evidenced by “lower pay, worse treatment, a hostile environment, disparate treatment, and, ultimately, unjustifiable termination” [8] were sufficient to demonstrate less favorable treatment. These, together with Stollings’ contentions that a) “male and heterosexual coaches were treated better than female and gay and lesbian coaches”[9], b) that the defendants “regularly made derogatory remarks about women”[10] and, c) “fostered an environment which saw women and gays and lesbians as inferior, and penalized female and gay and lesbian coaches who refused to conform”[11] were enough for the District Court to deny the motion to dismiss when it comes to this issue.
Regarding the Title IX retaliation count, the District Court indicated that in order to establish such a claim, Stollings must allege that (a) it participated in a protected activity under Title IX; (b) the defendant took an adverse employment action; and (c) there is a causal connection between the protected activity and the adverse employment action.[12] Here, the District Court concluded that the former coach was engaged in protected activity when she reported various Title IX violations. In addition, the Court found a causal connection between this protected activity and her termination since the violations brought potential embarrassment to the University and the Athletic Department.[13] The District Court, in addition, thought it was suspicious that her termination came four months after her reporting of the violation, finding that the “termination was a possible result such.”[14] Therefore, the District Court, again in taking all well-pleaded facts as true, concluded that Stollings adequately stated a claim for retaliation under Title IX against Texas Tech University and denied its motion to dismiss this count.
As a result of the District Court’s ruling, Coach Stollings’ complaint survived being dismissed and she will be allowed to move forward with her lawsuit. But, as stated in a previous article, is Coach Stollings really the party that has been wronged in this situation? It needs to be clear that Coach Stollings’ employment contract with the University was terminated on August 6, 2020, one day after USA Today published its article entitled Texas Tech women’s basketball players describe toxic culture: ‘Fear, anxiety and depression’.[15] As reported in that article, a number of current and former Texas Tech University players alleged that the women’s basketball program under Stollings amounted to a ‘culture of abuse’, describing it as a toxic atmosphere which resulted in twelve players leaving the program. Some of the noteworthy claims reported include the following:
- Admonishment of a student-athlete for displaying symptoms of depression, an illness in which the student-athlete was eventually diagnosed.
- Allegations by five players that strength and conditioning coach Ralph Petrella sexually harassed them and other female players, making suggestive comments to one and using a therapy technique that involved applying pressure to some players’ chests, pubic bones, and groins.[16]
- Retaliation by Coach Stollings and other coaches against three players after they brought abuse claims to school officials.[17]
So, the question remains, even though the District Court held that Coach Stollings can continue pursuing her claims against Texas Tech University and its Athletic Department, is justice being served?
[1] Stollings vs. Tex.Tech Univ, Federal Civil Action No. 5:20-cv-250.
[2] Id.
[3] Id.
[4] Title VII, Civil Rights Act of 1964.
[5] 42 U.S.C. § 2000e-2(a)(2).
[6] Bostock v. Clayton Cnty., 140 S.Ct. 1731, 1740 (2020)
[7] Id. at 1741
[8] Stollings vs. Tex.Tech Univ, Federal Civil Action No. 5:20-cv-250.
[9] Id. at p. 91.
[10] Id. at p. 93.
[11] Id. at 119.
[12] Taylor-Travis vs. Jackson State Univ., 984 F.3d at 1119.
[13] Stollings vs. Tex.Tech Univ, Federal Civil Action No. 5:20-cv-250.
[14] Id.
[15] USA TODAY Sports collaborated with The Intercollegiate, a college sports investigative media outlet that obtained Texas Tech’s exit interviews with players from the past two seasons via public records requests. In addition to reviewing those documents, USA TODAY Sports interviewed 10 players, two former assistant coaches and two parents about the program. Six of the players spoke on condition of anonymity for fear of retaliation.
[16] Coach Petrella, who denies any misconduct, resigned in March 2020.
[17] https://www.usatoday.com/in-depth/sports/ncaaw/big12/2020/08/05/marlene-stollings-texas-tech-program-culture-abuse-players-say/5553370002/
