By Dr. Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
On October 21, 2022, former Loyola Marymount University head women’s soccer coach, Jenny Bindon, filed a civil lawsuit in the Superior Court of California, County of Los Angles, against her previous employer. Per her sixteen-count complaint, Coach Bindon claims the following causes of action: Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, Tortious Interference with a Contract, Violation of FEHA – Disability Discrimination, Violation of FEHA – Gender Discrimination, Retaliation, Failure to Take All Reasonable Steps Necessary to Prevent Discrimination, Failure to Investigate, Defamation, Failure to Provide Payroll Records, Failure to Provide Personnel Records, Wrongful Termination in Violation of Public Policy, Intentional Infliction of Emotional Distress, and Unfair Business Practices, and Whistleblower in Violation of Labor Code 1102.5. Coach Bindon’s numerous claims center around the position that she was improperly terminated by LMU because on her disability, gender, and as retaliation for her reporting illegal practices.[1]
Coach Bindon, who was hired by the University on December 16, 2019, after agreeing to lead the team over the next four years for a base salary of $105,000,[2] alleges that immediately after signing the contract, she faced opposition from both the student-athletes and certain members of the LMU athletic department. As stated in her complaint, Coach Bindon claims that her efforts to motivate and inspire the members of the soccer team were ‘ignored and even expressly rejected’, that certain ‘athletes were insubordinate’, and that when she directed them to work out more or differently, some of the team members ‘flatly refused to do so’.[3] This lack of dedication, as alleged, interfered with the progress of other team members who wanted to work hard and improve.[4] When the former Coach sought assistance from the athletic department regarding these and other concerns, Bindon asserts in her complaint that Craig Pintens, LMU Athletic Director, together with Maria Behm, LMU Assistant Athletic Director/Women’s Soccer Sports Supervisor, both failed to support her and that Pintens even commented that there was a difference between ‘coaching women and men’, making it clear (to Bindon) that at LMU it did not matter whether the women’s team won, but only whether the male teams won.’[5]
With this being said, however, during a time of heightened mental health awareness and understanding, one of the noteworthy claims made by Coach Binden is that LMU violated the state of California’s Fair Employment and Housing Act, and in particular Section 12940(a) which prohibits discrimination in employment based on a (mental health) disability.[6] Coach Binden, who in August 2012 and while playing goalie for the New Zealand National Women’s Soccer Team, was injured when ‘she was kneed in the head by another player’.[7] As a result, Coach Bindon maintains that her short-term memory and certain other social skills have been affected, all of which LMU and the athletic department were fully apprised of when the school hired her as its women’s soccer coach.[8]
Concerns about Coach Bindon’s mental health came to the forefront after an incident resulted in her being placed on a ten-day mandatory leave. Upon her return, while meeting with her players to discuss the reasons behind her absence, Coach Bindon confided with the team that during her ‘time off’ she sought mental health assistance and, in one instance, contacted a suicide prevention hotline. It was this open and unguarded acknowledgment to the team that she suffers from memory loss and other mental health issues that Coach Bindon claims LMU used as a pretext to terminate her ‘for cause’ and release itself from paying any remaining compensation due under the terms of the contract.
As stated in the lawsuit, Coach Bindon alleges that in the email notifying her that she was being terminated from the University, LMU’s athletic department expressly stated that the dismissal was predicated on the disclosure of her mental health condition to the students, citing these comments were ‘inappropriate, alarming, and inconsistent with University behavioral expectations.’[9] However, Coach Bindon claims that an individual can choose whether or not to divulge a personal mental health issue to a third party or parties and, if such divulgence is made, it cannot be used against a person because it is considered protected activity under California’s Fair Employment and Housing Act. Coach Bindon also asserts that by LMU referring to her mental health disclosure as ‘misconduct’ and then using it as the basis to terminate the employment contract ‘for cause’, is prima facia evidence that supports her Breach of Contract cause of action since any mental health admission cannot be considered misconduct under anti-discrimination laws, while at the same time establishing a second violation of California’s Fair Employment and Housing Act.
LMU will undoubtably attempt to defend the termination by claiming that the University retains the right to dismiss an employee ‘for cause’ if that employee violates either the terms or conditions of the employment contract and that Coach Bindon did indeed violate such terms by speaking openly about her own mental health issues, which the University considers to be ‘conduct and behavior (that falls) materially below the University’s expectations and requirements’.[10] This may be a legitimate argument on behalf of the LMU, but, perhaps, isn’t the real motivation behind the dismissal being that since hiring Coach Bindon as the its head women’s soccer coach in December 2019, the team had an overall record of 1-26-1?[11] This, coupled with the fact that a college or university cannot terminate a coach ‘for cause’ based upon a win/loss record, left LMU with only one alternative in order to avoid paying Coach Bindon the remaining balance due under the terms of the contract – create a pretext for termination.
Within college sports there is intense pressure to not only perform at a high level, but to excel. Because of these and the other difficulties associated with the Covid-19 pandemic, colleges and universities have realized that prioritizing mental health is crucial for the overall success of its student-athletes. At the same time, it is also crucial for the overall success of its coaches, trainers, and other athletic department administrators. LMU was fully aware that Coach Bindon experienced short-term memory loss and had other mental health issues when it hired her to lead its women’s soccer team. LMU may have also subsequently realized that because of these issues, it may not be in the student-athletes’ best interest to continue having her as the team’s head coach. That being said, however, LMU should not use Coach Bindon’s openness about her mental health as a reason to terminate her ‘for cause’, doing so is borderline unconscionable and contrary to any advancements made in the mental health awareness area over the past several years.
[1] Bindon vs. Loyola Marymount University, Case No. 22SMCV02032.
[2] The base salary for the subsequent three years was as follows: $108,500, $111,500, and $155,000.
[3] Bindon complaint, at p. 6
[4] Bindon complaint, at p. 6.
[5] Bindon complaint, at p. 6.
[6] Bindon complaint, at p. 12.
[7] Bindon complaint, at p. 5.
[8] Bindon complaint, at p. 5.
[9] Bindon complaint, at p. 10-11.
[10] Bindon complaint, at 10.
[11] https://www.laloyolan.com/news/former-women-s-soccer-coach-sues-lmu-alleges-gender-discrimination-and-wrongful-termination/article.
