In a mixed ruling on a summary judgment motion, a California federal judge has dismissed and extended a former coach’s claim that he was retaliated against because of his whistle blowing activities.
The court dismissed the retaliation claim as it related to alleged Title IX violations, finding insufficient evidence for the claim. However, the plaintiff’s retaliation claim as it related to accounting mismanagement survived the summary judgment motion because he presented “evidence of a causal link between his complaints regarding fiscal mismanagement and the end of his employment.”
David Wells began his coaching career at Humbolt State University (HSU) in 1980. While employed at HSU, he coached a combination of men’s and women’s cross-country and track and field events, according to the court. His employment was governed by limited-term contracts. Usually, the contract was for a one-year term, but sometimes the term was two or three years. For over two decades, after each term expired, the plaintiff’s contract would be renewed for another set term.
In late 1998 or early 1999, the plaintiff became concerned about HSU’s compliance with Title IX. He approached Mike Swan, who was then the athletics director, and discussed his concerns, specifically, the inequality between the funding of men’s and women’s sports. Swan was non-responsive, according to the court. The plaintiff then met with John Costello, who was the Dean of the College of Professional Studies, to discuss his Title IX concerns. Dean Costello referred the plaintiff back to Swan. But the plaintiff’s concerns were not addressed.
The plaintiff then contacted the Office of Civil Rights. He learned that, as a coach, he could not file a complaint regarding possible violations of Title IX. Only students could file complaints. So the plaintiff then started working with female student athletes to address HSU’s alleged non-compliance with Title IX. Eventually, three student athletes filed a complaint with the OCR. Following the filing, and without a finding by the OCR of a violation or an admission by HSU of any wrongdoing, HSU agreed to implement a Voluntary Resolution Plan to resolve the Title IX issues raised in the complaint.
In August, 2001, Diane Milunitovich was commissioned to prepare a gender equity report for HSU. She concluded that HSU had made a number of decisions that adversely impacted female student athletes: “While these decisions do not appear to be intentional, the combined impact could be viewed, at best, as a lack of understanding of Title IX, or at worse, a pattern and practice of discrimination,” according to the report.
In early 2002, the athletics department, which had previously been housed under the Academic Affairs Department, was transferred to Student Affairs. At approximately the same time, Dan Collen became the school’s athletics director. Shortly after his appointment, Collen said that he noticed the plaintiff’s “various performance deficiencies,” wrote the court. The AD tagged the plaintiff “not meeting expectations” in the plaintiff’s performance review.
In 2002, HSU, like other California universities and colleges, suffered a reduction in State funding. The athletics department was required to cut its budget by ten percent for the 2003-2004 academic year, followed by another ten percent budget reduction for the 2004-2005 academic year.
The plaintiff also claimed that, through his investigation of Title IX non-compliance, he uncovered accounting errors, noting that $1,500 raised by a student athlete was improper and that a cash donation to track and field was unaccounted for.
He approached the administration with his concerns regarding missing funds and fiscal mismanagement. But, “after realizing that the administration would not investigate, he filed a formal whistleblower complaint with the CSU Whistleblower Office and another complaint with the State Auditor,” wrote the court. On March 16, 2004, he sent a letter to the vice president of student affairs, telling him that he had asked two different agencies to investigate fiscal mismanagement, misrepresentation of financial issues, and threats and retaliation towards those who questioned the fiscal activities of the athletics department.
Two weeks later, the athletic department opted not to renew the plaintiff’s contract that year. Instead, it restructured the position and embarked on a national search for a new coach. While the plaintiff applied for the new position, the search committee recommended hiring another candidate, criticizing the plaintiff for:
“Lack of recent participation in recruiting activities; lack of recent ability to work cooperatively and responsibly with Athletics department administrative and support staff; lack of recent participation in department wide fund-raising events, such as the Auction and scholarship fund-raising through Lumberjack Athletic Club.”
Investigations were conducted into Plaintiff’s whistleblower complaints. Notably, a supervising deputy attorney general at the California Department of Justice conducted an investigation into the decision not to renew the plaintiff’s contract, concluding that the plaintiff’s “allegation that (the individual defendants) retaliated against him in violation of the Whistleblower Protection Act is not substantiated by the evidence.”
In May, 2005, Plaintiff filed this action, alleging eight causes of action against Defendants. The Court dismissed the third cause of action for conspiracy and the fifth cause of action for wrongful termination in violation of public policy. In addition, the Court dismissed the first and second causes of action against Defendant CSU for violations of 42 U.S.C. § 1983 and dismissed the request for punitive damages against it. The defendants ultimately moved for summary judgment on the plaintiff’s other claims, notably:(1) his claims, under 42 U.S.C. § 1983, against the individual Defendants for violation of his First Amendment right to free speech; (2) his claim against Defendant CSU for retaliation for reporting Title IX non-compliance; and (3) his State claims against Defendant CSU for violating the prohibition against the discharge of whistleblowers.
On the freedom of speech claim, the court agreed with the defendants that the plaintiff provided “no evidence that the individual Defendants were aware of his Title IX speech or his involvement with the student group that filed the complaint with the Office of Civil Rights. Nor does Plaintiff dispute that none of the individual Defendants had responsibility for the athletics department when he made his Title IX complaints.”
The court added that “just as Plaintiff fails to provide evidence to show that the individual Defendants knew of his Title IX complaints, he does not dispute the individual Defendants’ contention that they did not. All three individual Defendants submitted declarations with their motion for summary judgment, stating that Plaintiff never complained to them personally about Title IX or gender equity issues and that they were not aware that Plaintiff was a Title IX proponent until this lawsuit began. Collen Dec, P 15; Butler Dec, P 15; Richmond Dec, P 7.”
Turning to the plaintiff’s second section 1983 claim that the defendants retaliated against him for reporting missing funds and for complaining about the athletic department’s fiscal mismanagement, the court wrote that the defendants “do not show that they would have taken the same action in the absence of Plaintiff’s complaints about missing funds and fiscal mismanagement.”
The court specifically noted that the plaintiff provided “evidence that Defendants did not always conduct national searches as Defendants contend is their practice. Defendants also restructured the women’s crew head coach position, did not renew the head coach’s contract and planned to conduct a national search for a new head coach. But, after the women’s crew head coach complained, Defendants cancelled the national search because, according to Defendant Butler, she was a satisfactory employee. She had not filed a whistleblower complaint.
“In sum, there is a disputed question of fact as to the reasons for Plaintiff’s termination. Therefore, the Court denies summary judgment for the individual Defendants on Plaintiff’s second section 1983 cause of action.”
Turning to the plaintiff’s allegation that the university retaliated against him for reporting issues of Title IX non-compliance to his superiors and to the Office of Civil Rights, the court drew a parallel with the ruling above, writing that the plaintiff “provides no evidence that individual Defendants were aware of his Title IX conduct, nor does he refute Defendants’ evidence that they were unaware of his conduct. Plaintiff states that he reported his Title IX concerns to the Dean of the College of Professional Studies and the former athletics director, Mike Swan. But it is undisputed that neither Mr. Swain nor the Dean of the College of Professional Studies took any adverse action against Plaintiff. Therefore, Plaintiff cannot establish the necessary causal link between his Title IX conduct and Defendants’ adverse employment actions.”
The plaintiff’s claim that he was retaliated against because he was a whistleblower drew a different conclusion from the court. “(The) plaintiff does not show a causal link between his Title IX activity and any adverse employment action, but he does present evidence of a causal link between his complaints regarding fiscal mismanagement and the end of his employment.
“The Court grants summary judgment in favor of Defendant CSU on Plaintiff’s claim under section 1102.5 to the extent that it is based on his Title IX activity, but denies summary judgment on this claim to the extent it is based on his disclosures regarding the athletics department’s fiscal mismanagement.”
David Wells v. Board of Trustees of the California State University, et al.,; N.D. Cal.; No. C 05-02073 CW, 2006 U.S. Dist. LEXIS 68260; 9/7/06
Attorneys of Record: (for plaintiff) Robert V. Cohune, Law Office of Robert Cohune, Truckee, CA.; Daniel Mark Siegel, Siegel & Yee, Oakland, CA.; Dean Royer, San Francisco, CA. (fir defendants) Rollin C. Richmond, President of Humboldt State University, Steven Butler, Vice President of Humboldt State University, Dan Collen, Athletic Director, Defendants: Alison L. Tsao, Cheryl D. Orr, Carlton DiSante & Freudenberger LLP, San Francisco, CA.
