By Erica Zonder, J.D., M.S., Assistant Professor of Sport Management, Eastern Michigan University
Current Head Golf Coach Bennett MacIntyre filed a lawsuit on June 21, 2019 against Carroll College in Montana, alleging Title IX retaliation as well as wrongful discharge under Montana state law.
According to the complaint, Plaintiff MacIntyre has worked at Carroll College (Defendant) in some capacity since 2006. He originally was hired as the Director of Community Living, a full-time position with benefits, as well as being paid a stipend for being the Assistant and then Head Golf Coach. He was promoted to Associate Athletic Director in 2013, while remaining the Head Golf Coach. It was at this time, he claims, that he became aware of a “significant disparity between the amount of funding” (MacIntyre v. Carroll College, 2019, p. 3) provided to male and female student-athletes, including disproportionate scholarships provided to males from fundraising. According to the complaint, by the fall of 2015, MacIntyre determined that the College was out of compliance with Title IX and brought his concerns to the school’s Title IX Coordinator in January of 2016. After considering an independent audit, the school decided to have an internal audit conducted by the incoming Athletic Director.
The complaint also alleges that MacIntyre had never received a negative performance evaluation until he reported his Title IX concerns, after which the outgoing Interim Athletic Director gave him the “lowest marks available on the form” (p. 8). The day after this assessment, MacIntyre was offered a two-year contract (July 1, 2016 to June 30, 2018) to be the full-time Head Golf Coach, with salary and benefits, at a reduction in pay from his Associate Athletic Director position. Defendant “acknowledged” that the student-athletes deserved a full-time coach “just like every other sport” at the school (p. 9). MacIntyre was informed in 2018 that the contract would not be renewed, but was offered a stipend agreement to continue as Head Coach, with a reduction in pay from $38,031.60 to $14,000 with increased responsibilities, including submitting written practice and work-out plans that were not required by other coaches, and an increase in participants without an increase in scholarships or recruiting budget. According to the complaint, Defendant blamed the reduction on budget cuts, but MacIntyre is the only coach to ever be dropped from full-time to stipend and further, he was not offered any other position that would allow him to retain his full-time employment status while other coaches were given jobs within athletics to supplement their salaries. He was also moved from an office to a cubicle, becoming the only head coach without a secure office.
In June of 2018, MacIntyre filed a grievance consistent with Carroll College’s policy, asserting retaliation for his “multiple requests to Defendant for compliance with Title IX” (p. 12). According to the complaint, the College brought in what they alleged was an independent investigator who is an alumnus of the school and the son of a former Carroll College President, and who had no experience with Title IX. The investigator’s report “verified,” among other issues, that the new Athletic Director is not a Title IX expert, the Defendant never asked the Athletic Director to perform a Title IX analysis, no athletic-specific Title IX training is provided to the coaches or student-athletes, the Title IX Coordinator/Director of Human Resources recognized that the change in employment to MacIntyre was a termination, other coaches viewed it as a termination, and MacIntyre continued to bring up his Title IX concerns in an exit interview (pp. 13-16). In 2019, MacIntyre submitted a report as part of a Program Prioritization process which again addressed gender disparities. The complaint alleges this report was “sanitized” to remove any mention of Title IX concerns (p. 17), and further when asked about the changes, the Athletic Director stated “you can’t measure sexual discrimination” (p. 18). While the report was ultimately changed back, the golf program was put in the lowest priority category.
Count I: Title IX — Retaliation (20 U.S.C. § 1681)
Title IX’s private right of action encompasses claims of retaliation against an individual because he has complained about sex discrimination. Plaintiff MacIntyre brought documented complaints and concerns to the Defendant’s Title IX Coordinator, including disparate scholarship spending, participation opportunities, treatment, benefits, funding, resources, and employment opportunities based on sex. As a result of bringing numerous written and verbal complaints, Plaintiff suffered an adverse action — he was terminated, his new position provided a salary that was less than half of his previous full-time position, he lost benefits, he was moved out of his office, he was given additional responsibilities, he was not allowed to fundraise, and he was “told to keep quiet regarding his termination” (p. 20). If he had not voiced his concerns, he would not have suffered adverse actions. And, Defendant’s alleged reason that Plaintiff was terminated, budgetary considerations, was pretext for retaliation.
Count II: Wrongul Discharge — Retaliation (MONT. CODE ANN. §39-2-904(a))
A discharge is wrongful under Montana law if it was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy, and according to the complaint, Title IX’s prohibition of the exclusion from participation, denial of benefits or discrimination under any education program on the basis of sex is public policy that “is inherent to the fundamental right that we are all created equal” (p. 21). After Plaintiff identified Title IX issues, Defendant terminated his employment as a full-time employee, offered a new, lesser position at less than half of the salary, cut all of Plaintiff’s benefits, moves his office to a cubicle in a different building, imposed mandates that other coaches were not required to follow, increased responsibilities and roster size, prevented any fundraising that other teams were allowed to have, changed his report to “sterilize” any mention of Title IX issues, and put the golf program in the lowest priority category. All of these actions were in retaliation for bringing Title IX concerns to the school’s attention.
Plaintiff MacIntyre asks for the following relief: An order declaring Defendant violated his rights under Title IX by retaliating against him; injunctive relief reinstating him to his position as a full-time employee and Head Golf Coach; a restraining order prohibiting future harassment, discrimination, or retaliation; an award of compensatory damages and monetary relief including emotional distress damages, attorney fees, and punitive damages.
The goal of Title IX is undercut if funding recipients are allowed to retaliate against persons who object to discrimination against others (DOJ, 2019). In Jackson v. Birmingham Board of Education (2005), the Supreme Court ruled that when 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 (para. 174). And further, reporting incidents of discrimination is integral to Title IX enforcement, so discouraging reporting through adverse employment action would “unravel” the Title IX enforcement scheme (para. 180). The Court also said that “teachers and coaches…are often in the best position” to identify discrimination (para. 181). In Jackson, the Plaintiff was a high school teacher and the girls’ basketball coach who complained about unequal treatment and subsequently began to receive negative work evaluations. To prevail on the merits, the court held that Jackson would have to prove that the school board retaliated against him because he complained about sex discrimination, but regardless, a reasonable school board would realize that institutions covered by Title IX cannot cover up violations of that law by means of discriminatory retaliation (para. 184). MacIntyre too will have to show that he suffered an adverse employment action because of his Title IX complaints, and has requested a jury trial. In 2018, a federal jury in Minnesota found for Plaintiff Shannon Miller in a Title IX retaliation case (amongst other claims). Miller, the former Women’s Hockey Coach at University of Minnesota-Duluth had complained about the disparities in funding between the men’s and women’s teams, and was told initially that “strictly financial” reasons (Miller v. The Board of Regents of the University of Minnesota, 2015, p. 5) led to her termination. The school later blamed a decline in her performance as the cause for her termination (Kraker, 2016). Miller had won five national championships. The verdict of $3.74 million was later upped to $4.2 million, but her request to be reinstated was denied (Warfield, 2019).
Department of Justice (2019). Title IX Legal Manual. Retrieved from https://www.justice.gov/crt/title-ix#3.%C2%A0%20Retaliation
Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005).
Kraker, D. (2016, January 22) U regents respond to discrimination charges from ex-coaches. MPRNews. Retrieved from https://www.mprnews.org/story/2016/01/22/regents-respond-umd-descrimination-lawsuit
MacIntyre v. Carroll College, Case 6:19-cv-00042-SHE (D. Mont. 2019).
Miller v. The Board of Regents of the University of Minnesota, CASE 0:15-cv-03740-RHK-LIB (D. Minn. 2015).
Warfield, B. (2019, February 13). Judge Awards Shannon Miller Additional $460,000 in UMD Lawsuit. WDIO.com. Retrieved from https://www.wdio.com/sports/judge-awards-shannon-miller-umd-lawsuit/5245407/