A federal judge from the Northern District of Ohio has dismissed the claim of a former high school football player, who alleged a school district was liable for sexual harassment in violation of Title IX, 20 U.S.C. §§ 1681, et seq., because it did nothing to stop the head football coach from “calling him ‘pussy,’ ‘pretty boy,’ and other derogatory terms, (which) targeted his masculinity.” In so ruling, the court found that the plaintiff failed to demonstrate that he was harassed because of his gender.
The court also dismissed the plaintiff’s other claims that the individual defendants in the case violated his Constitutional rights to equal protection and substantive due process.
Plaintiff Reid Lininger was a former St. Mary’s Memorial High School football player.
Paul Douglas Frye, one of the individual defendants, became St. Mary’s head football coach in January 2014, after previously coaching there from 1999 through 2010. Frye’s record was not unblemished in his previous tenure at the school. He had a reputation for being tough on his players, including using profanity and calling them names. This resulted in complaints from players and parents as well as disciplinary action against Frye. St. Mary’s Superintendent Shawn Brown, another individual defendant, admitted to knowing about some, but not all, of Frye’s disciplinary record.
During the hiring process, three parents, including Lininger’s father, encouraged Brown to recommend Frye to the Board. Yet, Brown received emails from at least two community members expressing concern about hiring Frye. Brown interviewed only Frye for the head coaching job. After the interview and reviewing Frye’s information, Brown recommended Frye for the role.
Lininger began playing football for St. Mary’s as a freshman in the Fall of 2013. His sophomore season was Frye’s first back at St. Mary’s. Lininger was the starting junior varsity quarterback and the backup varsity quarterback. He practiced with the varsity team but rarely played quarterback in varsity games — and never did so after Frye became head coach. Frye regularly criticized Lininger during practices, sometimes in front of the whole team. Almost daily, he insulted Lininger, calling him “pussy”, “spoiled rich pretty boy pussy”, “bitch”, “soft”, “entitled”, or some combination of those terms.
Frye called Lininger names for myriad reasons. For example, he called Lininger a pussy for being afraid to take a hit or throwing the ball away too quickly and for missing practice time due to injury. He also told Lininger, in front of others, that Lininger “think[s he is] better than [other] people” because he attended a football camp. Frye made an example of Lininger, telling the team, “[Y]ou’ll never win with players like Reid,” or “[Y]ou guys need to work harder or you could be a waste of talent like Reid.”
Lininger occasionally told his parents about Frye’s behavior. Usually, his father told him “just to keep working hard,” His mother, however, believed Frye bullied Lininger and, in August 2014, tried to learn how to file a complaint against Frye. She gave up her efforts after calling Athletic Director James Hollman, Brown, and another Board member, Travis Kuenning, who did not yield the formal complaint procedure she sought.
On Oct. 23, 2015, the football team voted to remove Lininger’s teammate, Dane Chisholm, from the team. Chisholm’s removal set in motion an effort, which Chisholm’s father led, to lodge a complaint against Frye. On Oct. 24, 2015, Chisholm’s father called Lininger’s father, who complained that Frye “emotional[ly] abuse[d]” Lininger, “embarrass[ed] him,” and “treate[ed] him unfairly and disrespectfully.”
The campaign to remove Frye continued until, on Dec. 22, 2015, Brown and Hollman met with the fathers and their attorney. Ultimately, the fathers submitted a complaint to the Board. They also sent a complaint about Frye to the Ohio Department of Education (ODE).
On receiving the complaints, the Board began an investigation. On its attorney’s recommendation, the Board hired Ted Knapke, Ph.D. to lead the investigation. Dr. Knapke interviewed 11 players, some of their parents, and “the team doctor, the team trainer, and most of the coaches.” Dr. Knapke did not interview Lininger or his father. Dr. Knapke summarized his two-day investigation in a Jan. 27, 2016 report. He explained that the allegations against Frye, if true, would warrant “significant changes in the program/personnel.” He concluded, however, that “[t]he investigation clearly did not bear out the allegations.” Indeed, Dr. Knapke explained, “the interviews of the eight students who did not submit [questionnaire responses] and those members of the coaching staff did not corroborate the allegations in the [responses].” Specifically, he found that “[b]oth coaches and students acknowledge that . . . swearing does occur at times, however, there is no evidence that it is out of line by most standards.” He also explained that his interviews with the team doctor and trainer and parents of injured players confirmed that the coaches properly administered the injury protocol.
Dr. Knapke ended his report with two recommendations: 1) the coaching staff should “[c]ontinue to communicate the injury protocols . . . with players and parents from the very start of the season” and (2) Hollman should “remain closely involved with” the football program. Specifically, Dr. Knapke recommended that Hollman learn players’ concerns and proactively address potential problems.
The ODE concluded its investigation in a letter dated April 27, 2017. The letter stated that the ODE “determined that no disciplinary action will be pursued.”
In April 2016, Lininger transferred to nearby Anna High School, where he played football and ultimately graduated in May 2017.
Nevertheless, Lininger sought relief from the courts. In a lawsuit, he claimed that the Board violated his rights under Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681, et seq. He alleged that he suffered 1) sexual harassment based on gender stereotypes and 2) retaliation for participating in Title IX-protected activity. Title IX provides that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
The court noted that to establish a Title IX claim for sexual harassment, Lininger must show: that the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive [him] of access to the educational opportunities or benefits provided by the school, (2) the funding recipient had actual knowledge of the sexual harassment, and (3) the funding recipient was deliberately indifferent to the harassment. Patterson v. Hudson Area Sch., 551 F.3d 438, 444-45 (6th Cir. 2009)
Proving sexual harassment is a two-step process. First, “the student [must show] harass[ment] on the basis of his or her sex.” Tumminello v. Father Ryan High Sch., Inc., 678 Fed. App’x 281, 284 (6th Cir. 2017). Second, the student must show that the “harassment [was] so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 634, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998) (explaining two-step sexual harassment inquiry).
The board argued that Lininger did not suffer harassment based on his sex. Lininger responded that Frye harassed him because he did not conform to male stereotypes.
While the court conceded that “harassment or stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” Tumminello, supra, 678 Fed. App’x at 284 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51, 109 S. Ct. 1775, 104 L. Ed. 2d 268(1989)), to succeed on a sex-stereotyping theory Lininger must show that he “did not conform to traditional gender stereotypes in an observable way and that these characteristics were the basis of his harassment.” Id. at 285-86 (citing Price Waterhouse, supra, 490 U.S. at 250-51); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (2006).
Lininger claims that Frye deliberately used the aforementioned terms to target “stereotypically feminine characteristics” and re-enforce “traditional notions of masculinity”. The court noted, however, “he produces no evidence … indicating he exhibited gender non-conforming characteristics.
“Further undermining Lininger’s claim, Frye ‘called everybody a pussy.’ Frye doled out his insults on an equal-opportunity basis: he spray-shot his name-calling at anyone, not focusing only on Lininger. His words did not single out Lininger for unique, observable, gender non-conforming characteristics. Because Lininger has not shown that Frye harassed him based on his sex, his claim for Title IX sexual harassment fails.”
The retaliation claim failed because the court determined that Lininger did not “engage in protected activity.”
Turning to the Constitutional claims under 42 U.S.C. § 1983 against all defendants, the court found that Lininger “has not demonstrated a genuine issue of material fact as to the constitutional claims’ merits.”
Lininger v. St. Mary’s City Sch. Dist. Bd. of Ed. et l.; N.D. Ohio; Case No. 3:16CV2853, 2019 U.S. Dist. LEXIS 6426 *; 2019 WL 188050;1/14/19
Attorneys of Record: (for plaintiff) Jason C. Cox, Sanford A. Meizlish, Barkan Meizlish Handelman Goodin, Columbus, OH; Leslie A. Albeit, Mark A. Weiker, Albeit Walker, Columbus, OH. (for defendants) Brian L. Wildermuth, LEAD ATTORNEY, Tabitha D. Justice, Subashi & Wildermuth, Dayton, OH; Robert C. Tucker, LEAD ATTORNEY, Tucker Ellis – Cleveland, Cleveland, OH; Amy L.J. Luck, William V. Beach, Robison, Curphey & O’Connell – Toledo, Toledo, OH.