A federal court has concluded that the former athletic director at Lafayette College in Pennsylvania, who was fired shortly after she became an advocate for gender equity at the school, is not entitled to relief under Title IX.
Specifically, the court found that Atkinson did not sufficiently allege that she was engaged in protected conduct, which is the first element of a retaliation claim, by virtue of the fact that she was in charge of the department that she was criticizing.
Atkinson was hired by Lafayette as AD on December 28, 1989, becoming the first woman appointed as athletic director in a coed Division 1-AA program.
Part of her responsibility was to ensure compliance with Title IX, which of course prohibits, in part, sex discrimination under any education program or activity receiving federal financial assistance.
From the outset of her appointment, Atkinson complained about gender inequities in the department and regularly made recommendations on Title IX issues. According to the plaintiff, her dispute with the college administration accelerated in mid-1998, when she began to push the college to expend additional funds for expanding women’s athletics.
For example, when the plaintiff’s “push for new funds was rejected by the administration, she attempted to reshuffle the department’s existing funds and develop a plan to cut certain sports, while adding others, in order to attain further Title IX compliance measures.”
However, the court noted that “the Board of Trustees Committee on Athletics and Student Affairs decided that before approving any such changes, it should conduct a broader and more comprehensive study of the entire athletic program.” Among the ideas to surface was to decrease “spending on athletics by either eliminating the men’s football program entirely or going down to a Division III status.”
Atkinson “remained strongly opposed to both eliminating football and altering the divisional status, as she felt it was not in the best interests of the College to do so in the middle of the capital campaign. On October 26, 1998, during the Board study of the Athletics Department, Plaintiff called a specially-scheduled meeting with all of the student-athletes to express her continued opposition to these alternate proposals. At this meeting, she stated:
“I, the senior athletic administration and coaching staff are firmly committed to keeping the “excellence” in the Lafayette Experience. We are fully committed to fighting to have Lafayette’s athletic program remain in Division I and to be competitive within the Patriot League. I personally will fight this battle with respect and diligence until I am fired or die in the job. I have formally expressed my strong viewpoints regarding retaining Division I status to the Central Administration. This Division I vs. Division III battle has been ongoing every two years for the past nine years. I am committed to fighting this battle again through this academic year. But I need your help, support and we must network together with the faculty, administration and alumni. We need to remain as a united department for getting additional resources as a Division I institution.”
The tensions between the parties continued to escalate, leading to a verbal confrontation and ultimately Atkinson’s firing.
The plaintiff sued Lafayette in 2001, arguing, among other things, that the college terminated her in retaliation for her advocacy for women’s athletics and Title IX. The court dismissed her retaliation claim under Title IX, finding no private right of action to enforce such claims, pursuant to Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). Atkinson v. Lafayette College, Civ. A. No. 01-2141, 2002 U.S. Dist. LEXIS 1432, 2002 WL 123449 (E.D. Jan. 29, 2002).
Atkinson appealed to the Third U.S. Circuit Court of Appeals, which reversed the lower court’s decision on the retaliation claim. Atkinson v. Lafayette Colley, 460 F.3d 447 (3d Cir. 2006). The panel based its decision on the fact that the United States Supreme Court’s holding in Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005). In Jackson, the high court concluded that Title IX’s private right of action encompassed claims of retaliation against an individual. Atkinson, 460 F.3d at 451-52. Accordingly, the Third Circuit remanded the case back to the district court.
There, defendant Lafayette College moved for summary judgment, spawning the instant opinion. It claimed specifically that “it is entitled to summary judgment on two grounds. First, it argues that the plaintiff has failed to set forth a prima facie case of Title IX retaliation. Second, it contends that, even assuming a prima facie case exists, the plaintiff has failed to rebut the college’s legitimate, non-discriminatory reasons for its actions.”
The court noted that “a prima facie case of Title IX discrimination involves three prongs: (1) protected activity; (2) a materially adverse action; and (3) a causal link between the two. Weston, 251 F.3d at 430.”
Prong one quickly became the focus of the court’s analysis.
The plaintiff’s Title IX activities “fail to fall within the realm of ‘protected conduct’ because she never engaged in activity that was either adverse to the college or outside the scope of her position as athletic director. The United States Supreme Court, in Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006), enunciated the general proposition that, in order to state a retaliation claim, complaints made within the scope of an employee’s job cannot constitute protected conduct. Id. at 421-24.”
Peter Adomeit, a professor of law at Western New England College and contributor to the Title IX Blog, was recently critical of the decision, noting that:
“In requiring a Title IX retaliation plaintiff to be targeted for conduct outside her job duties in order to receive the protection of law, the district court imposes a new and unwarranted requirement that is inconsistent with other Title IX retaliation decisions, including Jackson. Moreover, if it is the case that the college terminated her because of her Title IX advocacy (the district court thinks Atkinson’s fails on this element as well) then it should not matter at all whether she was acting against or in accord with her role as the athletic director. I hope that an appeal gives the Third Circuit an opportunity to clarify this legal issue.”
Eve Atkinson v. Lafayette College, et al.; E.D. Pa.; Civil Action No. 01-2141, 2009 U.S. Dist. LEXIS 81959; 9/9/09
Attorneys of Record: (for plaintiff) Alan B. Epstein, Jennifer L. Myers, Lead Attorneys, Spector Gadon & Rosen, PC, Philadelphia, PA. (for defendants) Barry Simon, Lead Attorney, Ogletree Deakins Nash Smoak & Stewart P.C., Philadelphia, PA; Dara Penn Newman, Lead Attorney, Merion, PA; John G. Harkins, JR., Lead Attorney, Harkins Cunningham, Philadelphia, PA; Neill C. Kling, Lead Attorney, Harkins Cunningham LLP, Philadelphia, PA.