Alabama Federal Court Finds No Title IX Retaliation in Auburn Softball Case

Oct 8, 2021

By Erica J. Zonder

Alexa Nemeth, a former softball player at Auburn University, sued Auburn for Title IX retaliation, claiming that the school denied her a roster spot on the team after she made complaints about sexual improprieties by a former coach, and further participated in a related investigation.

Background

Nemeth originally filed a Title IX complaint in 2017, alleging that Coach Corey Myers was having inappropriate sexual relationships with the athletes, that Head Coach Clint Myers (his father) knew about it, and that school officials covered it up.  ESPN covered the story and did numerous interviews, corroborating many of the allegations (Junod & Lavigne, 2017).  Nemeth was cut from the team, leading to the initial Title IX filing.  After Clint Meyers retired/resigned ahead of the following school year, Nemeth was denied a roster spot with the new coaching staff. 

In 2019, Nemeth filed a lawsuit in federal district court against Auburn, Corey and Clint Meyers, and two former presidents of the university, bringing claims for: 1) Title IX sex discrimination against Auburn, 2) Sexual harassment in violation of 42 U.S.C. §1983 against all defendants, 3) Title IX retaliation against Auburn, 4) Retaliation in violation of 42 U.S.C. §1983 against all defendants, and 5) Failure to supervise against all defendants in violation of §1983 (Nemeth v. Auburn, 2021).  Nemeth ultimately amended her complaint, limiting it to only the Title IX retaliation claim against Auburn.  She alleges that she was deprived of her roster spot on the team for 2017/2018.

Facts

Per the court’s opinion, Nemeth was a walk-on on the softball team in the fall of 2016.  She had been getting “favorable” feedback from Corey Myers.  After Corey took a leave of absence, she was criticized by Clint Myers (she “sucked” compared to others), yet was still given favorable comments in front of the team, and allowed to travel with the team on at least one occasion, although typically given minimal scrimmage time at practice and in games.   After Corey resigned, other coaches “effectively eliminated” her participation.  Nemeth believed she was being groomed/pressured to have sexual relations with Corey in order to receive better treatment at practice/games, as were other players, and Clint knowingly allowed it.  After she and her father complained to the Auburn athletic director and other staff, she was told by the coaches in the year-end meeting that they didn’t see a role for her on the team for the following year, and she was cut.  Her Title IX suit followed a few days later (Vitale, 2019).  After Clint “retired,” the new coaching staff held open tryouts, in which Nemeth participated, but she did not make the team (none of the participants did).  She then left Auburn for Elon University, where she played on their softball team.

Summary Judgment and Court Analysis

Auburn’s response to the retaliation claim was that the new coaching staff determined that Nemeth wasn’t a SEC caliber player/good enough to help the team moving forward, just like the other open tryout participants.  The court, as typical, analyzed the Title IX relation claim under the Title VII burden shifting framework.  Auburn conceded that Nemeth could establish a prima facie case, and focused their defense on showing a legitimate non-discriminatory reason that was not pretextual – i.e. the new coaching staff’s assessment of her ability.  The court noted, per Holifield, Combs, and Burdine, that the burden to rebut retaliation is “exceedingly light” and the defendant need only produce admissible evidence that would allow the trier of fact to rationally conclude that retaliation was not the motivation.  The court concluded that Auburn met this burden – as new coaching staffs must assess the team needs, and previous walk-ons, who played sparingly, are not guaranteed roster spots.  Therefore, in order to defeat summary judgment, Nemeth needed to demonstrate pretext, including satisfying a “but for” causation test – if not for her complaints, Auburn wouldn’t have taken an adverse action (not giving her a roster spot on the team).  The court also noted that Nemeth cannot substitute her own judgment for Auburn’s (per Chapman), nor simply “quarrel” with the reasoning. To establish pretext at the summary judgment stage, according to the court, Nemeth would need to demonstrate incoherencies, contradictions, etc. of the proffered legitimate reasons (so it’s false), AND that retaliation was the real reason.

Nemeth argues “temporal proximity” – she was deprived of a roster spot by the new coaches after her father sent an email to a member of the Auburn Board of Trustees (the “latest instance of protected conduct”).  The court noted that while temporal proximity is evidence of pretext (and Auburn “does not appear to quibble” with this issue here), it is not necessarily sufficient alone.  Something more is needed (Hurlbert, Tolar, Gogel).  For something more, Namath advances five more points: Continued presence on the website roster, general custom that walk-ons were not required to try out again, other walk-ons (who didn’t make Title IX complaints) were treated differently, she made the softball team at Elon, and Auburn’s “suspicious” actions in hiring new coaches.  According to the court, the problem is “simple,” – it’s a new coaching staff, and they can manage the roster differently than the old staff, and that roster spot expectations are not the same for walk-ons as for scholarship players.  The court further states that Nemeth fails to identify any similarly situated players who were treated more favorably.  Even the other walk-ons she claimed were treated differently were not similarly situated as they did not try to make the team with the new coaching staff.  And, playing for Elon does not require the same level of skill as an SEC school does (and courts are not “super coaching staffs” who substitute their judgement on issues such as skill anyway).  And finally, the court addresses her contention about Auburn’s suspicious behavior as innuendo and conjecture.

Conclusion

Nemeth, according to the court, “failed to demonstrate” that Auburn’s stated reason for not granting her a roster spot on the 2017/2018 softball team was pretextual/masking a retaliatory motive.  Therefore, the court concludes, Auburn is entitled to summary judgment on the Title IX retaliation claim.

References

Junod, T. & Lavigne, P. (August 26, 2017).  Former Auburn softball player alleges abuse, sexual harassment in 14-page complaint.  ESPN.com. Retrieved from https://www.espn.com/espnw/sports/story/_/id/20466809/former-auburn-tigers-softball-player-alleges-abuse-sexual-harassment-14-page-complaint

Junod, T. & Lavigne, P. (December 12, 2017).  Auburn banned Corey Myers over evidence of improper relationships. ESPN.com. Retrieved from https://www.espn.com/espnw/sports/story/_/id/21750766/auburn-softball-assistant-corey-myers-was-banned-school

Nemeth v. Auburn. No 3:19-cv-715-RAH-JTA (M.D. Ala. August 3, 2021).

Vitale, J. (October 3, 2019).  Former softball player Alexa Nemeth files lawsuit against university, Clint and Corey Myers.  Montgomery Advertiser.  Retrieved from

https://www.montgomeryadvertiser.com/story/sports/college/auburn/2019/10/02/former-auburn-softball-player-alexa-nemeth-files-lawsuit-against-university-clint-myers-corey-myers/3844609002/

Erica J. Zonder, J.D., M.S. is an Associate Professor of Sport Management at Eastern Michigan University.

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