Verdict in Sexual Discrimination Case Stuns Fresno State University

Aug 17, 2007

Fresno State University moved into damage control mode last month after a 12-member jury ruled in favor of its former volleyball coach in her sexual discrimination suit against the university, awarding her $5.85 million in damages.
The jury’s award exceeded the $4.1 million sought by plaintiff Lindy Vivas, who had claimed her contract was not renewed in 2004 because of her outspoken advocacy of gender equity and perceived sexual orientation.
The award also sparked grave concern at the university, which faces two other similar discrimination lawsuits. Two other claims initiated by former Associate Athletic Director Diane Milutinovich and former Women’s Basketball Coach Stacy Johnson-Klein are scheduled to go to trial this fall.
Attorney Dan Siegel, who represents both Vivas and Milutinovich, told the Fresno Bee that both cases are “very similar” and “very related.”
Several area attorneys further suggested to the paper that the jury’s decision is bad news for the school.
“There must have been some pretty good evidence that the athletic department stepped way over the line in discriminating against her,” said lawyer Nicholas “Butch” Wagner.
“If [the verdict] goes the other way, it would have poured water on (the plaintiff’s) expectations,” said Michael Idiart. “Now the university will get religion and try to settle those cases.”
Idiart’s comment proved prophetic. Siegel said earlier this month that he had had conversations with general counsel for the school and that there appeared to be some interest on both sides on trying to resolve the cases.
Fresno State also brought in outside counsel in the form of attorney, Mick Marderosian, who said in a statement that “the university is always interested in resolving these cases, and we’ll reasonably consider any settlement demand.”
The jury’s award to Vivas was broken down as follows:
— Past non-economical losses: $2,625,000
— Future economical losses: $1,802,069
— Future non-economical losses: $875,000
— Past economical losses: $550,000
Fresno State announced after the verdict that it would “actively pursue an appeal.”
It added that it was “extremely disappointed that the jury did not see that the university’s actions in this matter were based solely on Ms. Vivas’ job performance and her unwillingness to improve the volleyball program.
“Coaches are not like other employees. Coaches have individual contracts with the university which provide them better benefits and other perks for their added responsibilities. Those same contract agreements also hold coaches responsible to meet certain performance goals. When those goals aren’t met, the university can choose not to renew or renegotiate contracts. That’s what happened in this case.”
Milutinovich Suit
Milutinovich had been a vocal proponent of Title IX on a national level throughout the last decade. But it was when she turned her attention to the university athletic department and its practices that, allegedly, officials started discriminating against her and finally retaliating.
Mulutinovich, who filed her suit in 2004 in Fresno County Superior Court, named the following as defendants: the university, the university’s Athletic Corporation, university president John Welty, athletic director Scott Johnson and human resources director Jeannine Raymond.
Milutinovich worked in the athletic department from 1979 until April 16, 2002 when the position was eliminated. Among her responsibilities was supervising women’s basketball, soccer and volleyball and men’s golf, soccer and wrestling and other sports.
She claimed in her lawsuit that athletic department officials told her that her job was being eliminated for budget reasons. This, she argued, made little sense, given that the department has seen operating revenue increase 26 percent, or more than $4.6 million, in the past two years and the department has added 17 new full-time positions.
Milutinovich further claimed that she gave AD Johnson a handwritten memo listing problems with Title IX compliance. Other issues she raised included a disparity in travel arrangements between men’s basketball and football (chartered flights) and women’s sports (commercial flights).
The origins of the legal dispute may extend back to the 1994-95 academic year when the Office of Civil Rights conducted an audit of three California schools. Shortly thereafter, the OCR instituted a corrective action plan.
Six months after the OCR informed the university that it was no longer “actively overseeing the campus,” the school fired Milutinovich.
Attempts to mediate the case did not go well, according to Milutinovich’s attorney, who alleged that the university has been shredding important documents related to the case.
Johnson-Klein Suit
Johnson-Klein was accused of taking prescription painkilling medication from players and financial misdeeds, among other things. The “other things” she was accused of included, for example, stopping the team bus at a department store, when a player needed attention at a hospital as well as requiring the players to carry her bags on road trips.
But it was the incident around the prescription pain medication (Vicodin) that led to the school’s internal investigation in early February of 2005. By Feb. 9, the school had notified Johnson-Klein of her suspension. Three weeks later, Fresno State President John Welty announced the firing of the coach
“Fresno State cannot overlook or simply tolerate the behavior that has now been confirmed in the administrative review, despite the popularity of the coach,” Welty said at the time in a statement announcing her dismissal.
“Her pattern of dishonesty and misrepresentation risked NCAA sanction against the university and placed her staff in an untenable position of obeying orders that were patently improper or against university policy.”
A university report was very critical of the “hostile environment” that Johnson-Klein had created and fretted over what would happen if she returned to the team.
“If she returns, they (players and coaches) fear retaliation,” the report says. “They are fearful of anything the coach tries to do for them because they know from experience that if she gives them anything she makes them regret it later. If she is nice to them one day, they will pay for it the next. … On the court, students report that she is inconsistent and unclear about her expectations of them.”
The report also identified an incident where Johnson-Klein informed her assistant coaches that she was putting more money in their bonus checks, but would ultimately redirect the money to an employee, who was not scheduled to receive a bonus. When the assistants had to pay taxes on the full amount, which they did not actually receive, it violated state and federal tax laws, according to the school.
“Her ability to control, persuade and coerce was effective in an environment where her subordinates would walk through a wall for her at her direction, and where most people were enamored with this coach who presents a very different image to the world outside,” according to the report.


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