By Jeff Birren, Senior Writer
Jeff Thompson coached women’s gymnastics at Penn State University (“PSU”). He had success at competitions, but problems at practice. After years of complaints, Thompson was dismissed “for cause.” He responded by suing PSU for defamation, false light, and breach of contract. In September 2022, the Pennsylvania Court of Common Pleas granted PSU’s motion for summary judgment, which the Pennsylvania Superior Court recently affirmed. The Court “adopted” the opinion below “as our own.” With regard to this case, Thompson was a “limited-purpose public figure,” and therefore had to prove that defamatory or false light statements were both false and made with “actual malice.” According to both courts, Thompson failed to meet this legal standard. (Thompson v. Pa. State Univ. Case No. 1460 MDA 2022).
Background
The Good
The following information was gathered from a PSU webpage. Thompson spent years coaching gymnastics, including eleven years at Auburn. Twice he was SEC gymnastics coach of the year. He was hired as PSU’s Women’s coach in 2010. There he coached women who won awards, including both Big Ten Gymnastic of the Year and various Academic Big Ten selections.
The Bad
The following facts come from the trial court’s opinion. His wife, Rachelle Thompson, “was hired as Assistant Coach.” By 2011, just one year into Thompson’s coaching employment, problems surfaced. A Vice Provost “concluded that both Thompson and his wife were responsible for violations of the PSU Policy, which protected students’ rights to privacy, by Rachelle Thompson’s interference in a student athlete’s sexual relationship and Plaintiff’s failure to stop such conduct.” PSU “sent letters of reprimand informing [Thompson] and his wife that there would be a close and continuing monitoring” of the program and that “further misconduct could lead to additional discipline or even termination. In 2012, [Thompson] signed documents certifying that he would abide by PSU’s Code of Conduct for intercollegiate athletics”.
In 2014, PSU received anonymous letters complaining about Thompson. A deputy athletic director merely interviewed the department’s Academic Advisor and “two senior members of the team, all of whom denied that the complaints were valid.”
In 2015, Ms. Sandy Barbour became PSU Athletic Director and Thompson hired Samantha Brown as an assistant coach. That fall, Brown relayed “concerns” to PSU related to Thompson, “including the amount of confrontation with the athletes; the ambiguity of whether the Plaintiff or his wife was the Head Coach; calling a student athlete a ‘pussy’; and ignoring the mental health issues of student athletes.” Then, yet another investigation followed. Brown’s concerns were relayed to Thompson in December 2015. More disciplinary letters were placed in Thompson’s personal file and he “was warned that future misconduct could result in further disciplinary action up to and including termination.”
In January 2016, Thompson fired Brown. This led to “a series of media stories … that were largely critical” of him. Thereafter, Rachelle Thompson announced her intention to resign at the end of the season. In May, Barbour gave a statement to a local news source that Thompson and his wife “are aware of the fact that these allegations have been made … they are cooperating fully and look forward to learning how they can improve.”
In January 2017, the athletic department administrator met with two assistant coaches. They expressed “the things [Thompson] had done contrary to what” PSU asked him to do. “This conduct included statements concerning athletes’ bodies and sexual relationships.” Internally there were discussions about “Title IX violations and the prior misconduct.” Finally, in February 2017, PSU terminated Thompson “for cause.” He subsequently “accepted an offer of employment from a family friend” at Pearland Gymnastics Academy in Texas. Thompson later sued PSU in July 2017 alleging “defamation, false light, and breach of contract.”
Legal Interlude
In Pennsylvania the civil tort of defamation is a statutory claim. The required elements are found at 42 P.C.S. §8343. A related claim known as “false light” is a common law claim, asserting that the defendant made a “highly offensive statement” about the plaintiff “that was publicized by [the defendants] with knowledge or in reckless disregard of the falsity” (Santillo v. Reedel, 634 A.2d 264, 266 (Pa. Super. Ct. 1993); Restatement (Second) of Torts § 652A.).
Due to the First Amendment, the U.S. Supreme Court added requirements to these causes of action. If the plaintiff is either a public figure or a limited-purpose public figure, “the plaintiff must establish that the defendant made a false and defamatory statement with actual malice” (A. Future Sys., Inc. v. Better Business Bureau of E. PA., 592 Pa. 66, 76 (2007)).
Thompson, Resumed
Whether a plaintiff is “a public or private figure is a question of law to be determined initially by the trial court.” A choice of profession may draw the plaintiff into regional and national view, and this “leads to fame and notoriety in the community” or may “voluntarily assume(s) a position that invite(s) attention, ‘such as athletes and coaches may make a plaintiff a public figure’” citing Curtiss Pub. Co. Butts, 388 U.S. 130 (1967)). In that case, plaintiff Wally Butts, a former Georgia head football coach and current athletic director, was held to be a public figure.
According to the Court, Thompson’s positive job performance “and the program itself, identify Plaintiff as a public figure, and, as such, the allegations by students and parents that led to this controversy are subjects of public interest in the local community, as well as nationally. Therefore, Plaintiff is at least a limited-purpose public figure.” Furthermore, the Court expressed, “speech on matters impacting educational institutions and their athletic institutions are matters of public concern. The statements at issue here … are legitimate and newsworthy matters of public concern that are of interest to the community.”
Malice?
Based on the Court’s recognition of Thompson’s public figure status, he was consequently required to show that PSU’s statements were false, either with knowledge that it was false or “with reckless disregard for the truth,” and made with malice. But what were the supposedly defamatory and false light statements? Allegedly, it was Barbour’s statement in May 2016 that Thompson and his wife “are aware of the fact that these allegations have been made … they are cooperating fully and look forward to learning how they can improve.” The Court noted “[T]his is the only statement by Defendant Plaintiff claims has a defamatory nature and depicts Plaintiff in a false light.”
Obviously, the statement is “not explicitly false.” There had been complaints and Thompson knew it. The statement is “merely Barbour’s perception of Plaintiff’s actions and reflects a positive view of the investigation.” Thus, “It is not a false statement.” The Court wrote further, “Moreover, actual malice is a subjective standard and Plaintiff has failed to produce anything from the record to indicate Barbour had actual malice in making the Statement.” Because Thompson “failed to show a genuine issue of material fact” on either claim, summary judgment was granted in favor of PSU.
Breach of Contract Claim
Thompson had a written contract with PSU that stated he could be terminated “for cause”. “Cause” included “conduct” that “reflects adversely on Employee’s fitness to serve as head women’s Gymnastics coach.” It was Thompson’s position that PSU “breached the contract by terminating his employment without cause.” That invited PSU to place in the record the “history of allegations of misconduct from as early as 2011 and continuing until Plaintiff’s termination.”
The Ugly
Thompson admitted making (startling) statements in his deposition. The Court quoted some. In particular, when “discussing the relationship of a gymnast he believed was overweight” Thompson said “Good, maybe [her boyfriend] will fuck some of the fat off of her.” But it gets worse. He once asked if gymnasts “were on the periods.” “With respect to a gymnast he felt was critical of him, Plaintiff stated ‘I fucking hate that bitch.’” “Discussing a gymnast’s body in the open gym, Plaintiff stated ‘she just keeps getting fatter and fatter.’” “In spotting a gymnast, Plaintiff stated ‘she likes it when I touch her butt.’” “Discussing a gymnast with mental health concerns, Plaintiff stated ‘I’m thinking she should take a whole week off this week and come back Monday, as long as you don’t think she will leave and kill herself.’”
Thompson insisted that PSU “needed to put the specific misconduct leading to his termination in the termination letter.” He also “now asks the Court to believe Defendant, despite the various instances of misconduct Plaintiff admitted to in the record, merely references those instances as a pretext to avoid paying Thompson more money. Plaintiff points to nothing in the record to support this position and has ‘cited no legal authority to support pretext as a viable basis for a breach of contract claim.’”
Therefore, the Court decided, “[N]o reasonable jury could conclude Plaintiff complied with his contractual obligations of fostering a positive relationship with the athletes and avoiding misconduct such as ridiculing and insulting student athletes.” There “was nothing in the record to support Plaintiff’s claims and show a dispute of material issue of fact.”
The Appeal
On appeal, Thompson only raised his defamation and false slight claims. In Pennsylvania, the Superior Court is an intermediate appellate court. This Court adopted the decision of the lower court and attached it as part of the Court’s own opinion. Thompson asserted that the summary judgment notion should have been denied when he “adduced evidence of actual malice in support of his defamation and false light invasion of privacy claims.” However, on appeal, the Court reasoned, “trial court’s order will be reversed only where it is established that the court committed an error of law or abused its discretion.” The decision below, the Court stated, was “supported by ample, competent evidence in the record, and we discern no error or abuse of discretion.”
Conclusion
Hamlet once lamented “the law’s delay.” That may refer to PSU’s conduct as Barbour was not unrelenting in protecting women gymnasts. PSU is lucky these women did not sue. Thompson sued PSU in July 2017. His deposition was not routine. His appeal was not rejected until November 2023. This, in a case where according to the trial court, there was nothing in the record to support his claims. The reinforced denial of Thompson’s claims did have the effect of widely circulating his admitted comments about the women he coached. Indignation at termination does not by itself create a viable lawsuit. Simply put, some complaints should not be turned into Complaints.
