By John Miller, Ph.D., sports law professor at the University of Southern Mississippi
Jeff Harlow entered into an employment agreement with Chaffey Community College for the position of Professional Expert-Head Coach, Baseball for January 15, 2004, through May 31, 2004. From 2004 through 2017, Harlow was annually hired for the season-long position of baseball head coach. Each year the position was promoted as a temporary, non-faculty position for a fixed term, terminable at any time without cause at the sole discretion of the community college.
Harlow’s agreement ended in 2017 when, Eric Bishop, the vice president of student services at the time, made the decision not to offer Harlow the head coach position for the 2017-2018 baseball season. Bishop declared that his decision not to hire Harlow for the 2017-2018 baseball season was predicated on the results of an independent investigation regarding a baseball game between Chaffey and Santa Ana Community College. A written report to Interim Athletic Director Jeff Klein proclaimed that Harlow was ejected for arguing with an official and using profanity.
After being ejected, Harlow left Santa Ana in a van he had used to bring the student-athletes to the game. According to school policy, coaches are responsible for ensuring all athletes have transportation to and from sporting events. However, Harlow revealed that because he was experiencing a panic attack, he drove the van about 40 miles to take his medication. Notably, Chaffey Community College policy prohibits more than seven passengers in a van transporting student-athletes. However, because Harlow drove one of the vans home from the game alone, each remaining van had more than seven passengers and one student did not have a seat belt, thereby violating college policy.
Cory Schwartz, interim dean of Kinesiology, Nutrition, and Athletics, Interim Athletic Director Jeff Klein, and Susan Hardie, director of human resources received an anonymous email, purportedly from a parent, reporting that Harlow jeopardized the safety of student-athletes at the 2017 game. After receiving the email, Hardie recommended Harlow be placed on administrative leave while an independent investigator completed an investigation as is the protocol at Chaffey. Harlow was placed on paid administrative leave in both his coach position and his faculty position.
Based on the investigator’s report, Bishop concluded Harlow endangered the student-athletes when he left them at a game and took a Chaffey van without ensuring all athletes returned to Chaffey safely. Bishop further decided it was not safe for Harlow to operate a motor vehicle if he was experiencing a panic attack. Furthermore, Bishop had also been told that Harlow urinated on an opposing team’s baseball field, would yell at office staff, and was easily upset. However, Harlow denied urinating on the field and yelling at staff. Bishop asserts that he decided not to offer Harlow a professional expert contract for 2017-2018 based on Harlow’s behavior and failure to take responsibility for his actions but allowed him to return to teaching. As a result of his dismissal as a coach, Harlow brought claims for race, age, and disability discrimination; retaliation; and harassment against Chaffey Community College. These issues will be discussed in the following sections.
Age Discrimination
The Age Discrimination in Employment Act (ADEA) of 1967 was created to protect employees who are 40 years old or older from discrimination in the workplace. The ADEA prohibits organizations from hiring or firing an employee based on that person’s age. Thus, the ADEA promotes “employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment” (Age Discrimination in Employment Act of 1967 (Pub. L. 90-202) (ADEA), section b).
Because he was older than 40,Harlow asserted age discrimination because he is white and his replacement as the head baseball coach, Michael Cordero, Latino, was younger, less qualified, and has less experience. Defendants argue the Court should grant summary judgment on Harlow’s claim for age discrimination because Harlow cannot prove a prima facie case of age discrimination. Using the three-stage burden-shifting approach established by McDonnell Douglas Corp. v. Green (1973). For the first stage, the plaintiff first bears the burden of establishing a prima facie case, which raises a presumption of discrimination. To ascertain a prima facie case of age discrimination, Harlow needed to reveal that he (1) was at least forty years old, (2) was performing his job satisfactorily, (3) suffered an adverse action, and (4) was either replaced by a substantially younger employee with equal or inferior qualifications or discharged under circumstances otherwise giving rise to an inference of discrimination (Schechner v. KPIX-TV, 2012).
In the second stage, the burden shifts to the employer to rebut this presumption by producing admissible evidence sufficient to show that “its action was taken for a legitimate, nondiscriminatory reason” (McDonnell Douglas Corp. v. Green, 1973, pp. 355-356). Should Chaffey Community College, as the employer, supports its burden, the presumption established in the first step disappears. As a result, Harlow would need to raise a triable issue indicating that Chaffey Community College submission was a simple pretext for unlawful discrimination or offer other evidence of discriminatory motive (McDonnell Douglas Corp. v. Green, 1973, p. 356). To do so Harlow needed to produce sufficient evidence “to allow a jury to conclude that age was a ‘substantial motivating factor in his termination” (Harris v. City of Santa Monica, 2013, p. 232). This requirement ensures that “liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision” (Harris v. City of Santa Monica, 2013, p. 232).
In the third stage, the burden falls to the defendants to present admissible evidence revealing Chaffey terminated Harlow for a legitimate, nondiscriminatory reason. An employer’s “true reasons need not necessarily have been wise or correct,” as long as they are not discriminatory. In the immediate case, evidence showed that Bishop decided to terminate Harlow due to the events such as leaving his team and other objectionable actions at the baseball game against Santa Ana Community College. The defendants argued that because Harlow did not apply for the coaching position for the 2017-2018 season after Bishop made the decision not to offer him the position, Harlow could not state a claim for age discrimination. However, it could be asserted that Harlow suffered an “adverse action” sufficient to state a claim when he was not offered a contract for the subsequent year (Wilson v. Murillo, 2008). Since the defendants provided sufficient evidence that they acted for a legitimate, nondiscriminatory reason, Harlow had to show the defendants’ reasons were pretextual. However, Harlow made no further argument addressing age discrimination. As a result, the court granted summary judgment to the defendants.
Racial Discrimination
The most significant law that covers racial discrimination on employment is Title VII of the Civil Rights Act of 1964 (Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352). Title VII protects individuals against employment discrimination based on race and color as well as national origin, sex, or religion. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Thus, it is not lawful for an organization to discriminate against any employee or applicant for employment because of race or color regarding the hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment.
Harlow alleged that once in the 1990s and once in 2008 he was told he needed more “color” in his program. To that extent, the Court reported that offensive comments are not actionable. Furthermore, two comments over nearly 20 years do not generate a prevalent environment of harassment. Further, the Court indicated that race discriminatory was not about his race or the race of coaches rather it referred to student-athletes. As a result, the allegations Harlow made about the three student-athletes harassing him apparently because he is white were irrelevant since the individuals were students and not Chaffey employees. Thus, the Court granted summary judgment to the defendants regarding assertions of race discrimination.
Disability Discrimination
Disability discrimination happens when an employer that is covered by the Americans with Disabilities Act (ADA) or the Rehabilitation Act treats those with a qualified disability unfavorably because of the disability. Among the disabilities covered under the ADA are panic attacks (Equal Employment Opportunity Commission v. Crain Automotive Holdings, LLC No. 17-cv-00627 (E.D. Ark. April 11, 2019).
Harlow did not allege any comments were made to him as to his disability (e.g. panic attacks). Instead, he asserted that he was not provided proper accommodations as he had to drive Chaffey vans and did not have an additional coach assigned to him despite his disability both of which were standard policies for Chaffey Community College. The Rehabilitation Act defines disability as “a physical or mental impairment that constitutes or results in a substantial impediment to employment” 29 U.S.C § 705(9).
A person alleging a claim under Section 504 of the Rehabilitation Act must establish a prima facie case by revealing evidence that he/she is: disabled within the meaning of the Act; able to perform the essential aspects of his employment either with or without reasonable accommodations; and receives federal financial assistance. Additionally, the plaintiff must show the defendant involved in contrary employment action(s) that discriminated against the plaintiff due to a disability. Furthermore, “A failure to provide reasonable accommodation can constitute discrimination under section 504 of the Rehabilitation Act” (Vinson v. Thomas, 2002). However, he did not present any evidence that he requested to alter these standard policies due to his disabilities until after he was terminated as baseball coach. Furthermore, the defendants argued for summary judgment since Harlow could not prove a prima facie case as the community college had a non-discriminatory basis for its actions and they did not have any knowledge of Harlow’s panic attack disability. As a result, the Court held that being treated equally to other sports coaches did not show Harlow’s claim that there was a “pervasive” environment of harassment at Chaffey Community College. Thus, the Court granted summary judgment for the defendants concerning charges of disability discrimination.
Sexual Harassment
It is unlawful to harass an employee due to the individual’s sex. Such actions can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. To prove a claim for harassment, Harlow needed to prove unwelcome conduct based on age, race, or disability that is “sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive work environment.” (Lyle v. Warner Bros. Television Prods., 2006, p. 264)
Harassment does not have to be sexual, however, and can include offensive remarks about a person’s sex. Moreover, the victim and the harasser can be either a woman or a man, and the victim and harasser can be of the same sex. Finally, the harasser can be the victim’s supervisor. In this case, Harlow alleges that the interim dean of students, Schwartz, made advances towards him that he rejected. Specifically, Harlow stated that Schwartz asked him to meet her at a local Starbucks which he declined. However, Harlow further indicated that Schwartz did not make any overtures of being romantically interested in him. As a result, the Court granted summary judgment to Chaffee Community College.
Retaliation
To employ a prima facie claim for retaliation, Harlow needed to reveal that (1) he was engaged in a protected activity, (2) Chaffey Community College subjected him to an adverse employment action, and (3) there is a causal link between the protected activity and Chaffey Community College’s action. Harlow contended Schwartz canceled one of his classes in retaliation for him rejecting her alleged advances. As the interim dean, Schwartz had the responsibility to identify and cancel courses that did not have a minimum of 17 students the week before the course started. Of the three summer classes Harlow was assigned to teach, one had an enrollment of only seven students. Schwartz then consulted with the coordinator for the Kinesiology Department and determined that the course with seven students had to be canceled due to low enrollment. However, Schwartz assigned another class to Harlow that substituted for the one that was canceled. Finally, Harlow alleged several retaliatory actions were committed against him such as denying him the use of his car, terminating him and denying him another assistant coach. However, Harlow had never reported or filed any complaints of discrimination, retaliation, harassment, or sexual harassment to the Chaffee Community College human resource department. The Court determined that no material issue of fact existed regarding whether Harlow was retaliated against as he did not present any evidence of a causal link between his “complaints” and his termination. As a result, the Court granted summary judgment to the defendants. o
References
Equal Employment Opportunity Commission v. Crain Automotive Holdings, LLC No. 17-cv-00627 (E.D. Ark. April 11, 2019).
Harris v. City of Santa Monica, 56 Cal. 4th 203, 232, 152 Cal. Rptr. 3d 392, 294 P.3d 49 (2013).
Lyle v. Warner Bros. Television Prods., 38 Cal 4th 264, 279, 42 Cal. Rptr 2, 132 P. 3d 211 (2006).
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 669 (1973).
Schenchner v. KPIX-TV, 686 F.3d 1019, 1023 (9th Cir. 2012)
Wilson v. Murrillo, 163 Cal. App. 4th 1124, 1134-35, 78 Cal. Rptr. 3d 214 (2008).
Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002)
