Paying it forward

I am usually pleased to see Title IX activism anywhere, and especially so when the activist(s) who files a complaints or makes known a potentially inequitable situation has no vested interest in the situation (besides a general interest in gender equity which everyone should have a vested interest in). But I was really, really pleased to read that Diane Milutinovich, one of the Fresno State plaintiffs, was getting involved in another gender equity case at another institution. Cuesta College in Can Luis Obispo, California dropped its women's tennis team this past summer (yes, we did miss that news) in an effort to cut costs. We know that California state schools are in tough shape but the rationale, that cutting the 8-member team, affected the least amount of students, is, of course, not quite legal if it turns out that the college is not offering equitable athletic opportunities for female students.
Milutinovich filed a complaint with OCR against the school this past weekend after feeling that she was not being heard by administrators at the school when she volunteered to help address the situation. Administrators are scheduled to address the issue at a February board meeting. But now that an OCR complaint has been filed I imagine any potential remedy (should one be necessary) would have to be negotiated with OCR.
Interestingly, when one visits the Cuesta College homepage there is a Title IX Notice link that is displayed fairly prominently. And it takes you here where you can find out how to reach the Title IX coordinator and that college's adherence federal antidiscrimination laws. Not sure if this is a new link, or a newly placed link, or if it is required of all California state schools given their previous issues with gender equity.

Fresno State Settles With Former Assistant Track Coach

We blogged earlier this year about Ramona Pagel's case against Fresno State, in which she claimed that the athletic department failed to renew her contract and passed her over for promotion to head coach because she advocated for equal treatment for female athletes.

Last week, this litigation reportedly settled for $300,000. Fresno State admits no culpability but stated that it settled to avoid more lengthy and costly litigation. This statement refers, of course, to the five other lawsuits filed by former female coaches and employees of the athletic department, for which Fresno State has had to pay more than $16 million.

No irony at Fresno State

This editorial out of Fresno State wraps up the university's year in athletics noting the good, the bad, and the ugly.
After mentioning that he heard the word Title IX more times this year than ever in his life, and how it was blamed for the loss of sports and all the lawsuits, he writes that:
"ironically, the women’s sports brought most of the glory the school saw this year."
The success of women's sports at Fresno State is not ironic, it's poetic.
It's not women's sports that generated the controversy, it's the administration that refused to support them.
I guess a little support does go a long way.

Former Assistant Coach Sues Fresno State

Did you think we were done blogging about Title IX cases against Fresno State? Me too.

But the Fresno Bee reported Tuesday that a new lawsuit will soon be filed by a former assistant track and field coach, Ramona Pagel. Pagel is a former Olympian and American recordholder in shotput. She was an assistant coach of the men and women throwers on Fresno State's track and field team for three years, but was passed over for the head coach position notwithstanding her favorable performance evaluations and Fresno State's apparent policy of hiring from within. Pagel maintains that the hiring decision, as well as Fresno State's decision not to renew her contract, was motivated by sex discrimination and retaliation for her advocacy on behalf of women's athletics.

That's all the detail we have at this time, but I'm sure there will be more news and analysis to come.

Vivas Case Settled for $5.2 M

Fresno State has opted to settle with former coach Lindy Vivas rather than continue to appeal the the trial court's decision in her favor. Last year, Vivas won a $5.85 million jury verdict in the Title IX retaliation suit she filed after she was fired for advocating gender equity within the athletic department. A trial judge reduced it to $4.52 million, attorneys fees and court costs raised the total to over $5.6 million. Monday's settlement compensates Vivas and her lawyers through annuitized payments. Vivas's $2.1 million share will be paid out in $5,995 monthly installments for 30 years. Each of her two attorneys will receive $7040 a month for 20 years.

This is the last pending Title IX lawsuit against Fresno State. The others, along with their total settlements costs, are listed here.

Fresno lawyer gets big kudos

Warren Paboojian who represented--quite successfully--some of the coaches who filed Title IX lawsuits against Fresno State, received the attorney of year award from the Consumer Attorneys of California, a trial lawyers' association, this past weekend. The award was in recognition of Paboojian's work on the Stacy Johnson-Klein case in which Johnson-Klein, the former Fresno State women's basketball coach, won a $9 million jury verdict.
The award recognizes a lawyer whose work on a case has far-reaching effects. We believe we have seen such effects not only in CA but beyond; the recent settlements in three of FGCU lawsuits seem to be evidence of the "Fresno Effect."
It's nice to see those who work (often for very little money) on behalf of those who have faced institutional discrimination get recognized.

Fresno State adds lacrosse

In need of rectifying the disproportionate amount of scholarship dollars going to men and women, Fresno State has added--rather hastily it seems--women's lacrosse to its slate of intercollegiate sports. The decision was made last winter, and the season starts this spring. The university recruited Sue Behme who had been head coach at Nazareth College (a DII school). Her reaction when they offered her the position: "What, are you guys crazy?"
I thought she meant because, you know, she would never, ever go to Fresno State with its infamous history of sexism. But no, she was referring to the abbreviated timeline for starting--from scratch--a varsity team. The article describes Behme as a "live wire." Not sure how well that will go over in the Fresno State culture. Granted certain leadership positions have undergone change, but the school seems to have some issues with women who speak their minds, or actually just with women generally if you look back at some of the evidence.
I wish Behme and her fledgling team the best of luck. And I am heartened that Fresno State is dealing with some compliance issues. But I think I am going to remain a little subdued in my praise and excitement for now.

Busy guy...

...that Warren Paboojian of Fresno, California. He represented both Stacy Johnson-Klein and Diane Milutinovich in their Title IX lawsuits against Fresno State--successfully with both plaintiffs receiving either substantial settlements or jury awards. (Click the Fresno State tag for the whole Fresno State saga.)
And now he has a new client, former Exeter High School girls' basketball coach Linda Wachter. Wachter was fired last spring and she believes it was in retaliation for complaining about (the lack of) gender equity. She is also citing a hostile work environment and asking for an as-yet-unknown amount of damages.
Eerily similar to some of the other Fresno State cases, it appears there are some disgruntled players on Wachter's former team. Though they have not come forward with specific allegations against anyone unlike the players who, for example, spoke out against Johnson-Klein at her trial.

Another Settlement in Fresno

This just in: Fresno State will pay $125,000 to former men's basketball secretary Iris Levesque in settlement of her sex discrimination lawsuit against the university. We blogged about Levesque's case when she filed last December, claiming that the university's purported "financial reasons" for laying her off were really pretext for punitive motives for complaining about the hostile and discriminatory atmosphere of the basketball office under then-head coach Ray Lopes.

Under the terms of the settlement, Levesque will be hired as a receptionist/accounts receivable clerk in the university's housing department. She will also be hired retroactively for a three-month period by the by the Fresno State Athletic Corporation so that her retirement account will vest. She will also be paid $86,000, a figure that includes salary for the retroactive employment period, and her lawyers will receive $39,000.

The Fresno Bee notes that this brings Fresno State's total potential payout in sex in discrimination lawsuits involving athletic department employees to slightly more than $16 million.

• $4.52 million jury award to former volleyball coach Lindy Vivas; an appeal is pending.
  
• $3.5 million settlement with former associate athletic director Diane Milutinovich.
• $7.3 million to fund a $9 million settlement with former women's basketball coach Stacy Johnson-Klein (Fresno State's contribution is discounted because the payments are spread out over 25 years).
  
• $605,000 settlement with softball coach Margie Wright, the only case with no lawsuit.
• $125,000 settlement with Levesque.

[Thanks a lot to DM and DW, who each promptly alerted me to the story!]

Mediation Prevents Another Lawsuit Against Fresno State

Fresno State will reportedly pay $605,000 to softball coach Margie Wright, who in 2004 filed a complaint with the Department of Education Office for Civil Rights challenging the disparity in salaries to women coaches and the facilities and opportunities provided to female athletes. Wright had not filed a civil suit against Fresno State like her colleagues Lindy Vivas, Diane Milutinovich, and Stacy Johnson-Klein, but her OCR complaint -- which had raised issues similar to those cases that resulted in multi-million dollar payouts -- triggered a mediation that resulted in the settlement.

Wright testified at Vivas's trial about the sexist and homophobic culture of the Fresno State athletic department, including the "Ugly Women Athlete's Day" affair. She was prevented from mentioning how the baseball coach referred to her team as "Dykes on Spikes" but this testimony would have presumably been admissible in her own case.

Wright is the winningest softball coach in the NCAA, with 1307 career wins.

[Thanks, D!]

Jury Foreperson in Johnson-Klein Case Files Retaliation Case of Her Own

Yesterday, the woman who served as the foreperson of the jury in Stacy Johnson-Klein's discrimination case against Fresno State filed a retaliation case of her own, alleging that she was fired because of her jury service. The former juror, Yolanda Cerrillo, was the assistant principal at West Park Elementary School, outside Fresno. She claims that she was fired two days after returning to work, despite exemplary service in the past.

Though it's not clear from the news report I read, it seems her claim is that she was targeted because of the verdict that the jury reached -- $19 million for Johnson-Klein (later reduced) -- and not the fact of her jury service for the two-month trial, which would have required her to miss a ton of work.

But either way, I think her claim is covered by the California law that governs public schools (Education Code s. 44037), which states:

It is unlawful for ... any school district to ... discriminate against any employee with respect to assignment, employment, promotion, or in any other manner because of such employee's service on any jury panel.

Though juror protection statutes like this are most frequently used to ensure that jurors don't get fired or lose pay for taking time off to serve on the jury, the statutory language "because of such employee's service on any jury panel" seems broad enough to cover retaliation motivated by the jury's result in addition to the act of service itself.

As in any retaliation case, the hard part for the plaintiff will be proving a causal connection between the protected activity (serving on a jury and rendering a verdict) and the adverse employment action she experienced -- especially if the school district argues convincingly that she was fired for some other, permissible, reason.

Fresno State drops appeal of Johnson-Klein verdict; agrees to $9 million settlement

Fresno State will drop its appeal of Stacy Johnson-Klein's jury verdict, a $19.1 million figure that the court later reduced to $6.6 million, plus $2.5 million in attorney's fees and $700,000 in court costs. The university has agreed to pay Johnson-Klein a total of $9 million--which includes attorneys fees and costs -- over the course of 23 years.

Johnson-Klein, the former women's basketball coach, sued the university last year. The jury found that she was fired in retaliation for complaining about sex discrimination and harassment within the athletic department. (What a difference a year makes, huh? Fresno State reportedly turned down Johnson-Klein's offer to settle before the trial for $950,000.)

This seems like a pretty good deal for Johnson-Klein, as it is only a slight reduction from the $9.8 million she and her lawyers would have received in total if the district court's ruling had stood. However, as the Fresno Bee notes, the payout will actually cost the university considerably less than $9 million because it includes annuities for Johnson-Klein's six children, which the university can purchase at a discount. That discount, along with the long-term payment schedule, must have been important to Fresno State, as that seems like the only real concession Johnson-Klein had to make to get the university to drop its appeal.

Here's hoping that Fresno State will resolve Lindy Vivas's case in similar fashion. Vivas, the former volleyball coach, also convinced a jury that the university had fired her in retaliation for her opposition to sex discrimination in the department. The university is still appealing the jury award she received last summer, a $5.8 million figure that was later reduced to $4.52 million, plus attorney's fees.

[Thanks, W!]

Retaliation Cases Make Page 1 of USA Today

Tuesday's edition of USA Today raised the public profile of several retaliation cases we've followed extensively on the blog. The primary piece focused on the Fresno State plaintiffs -- Lindy Vivas, Diane Milutinovich, and Stacy Johnson-Klein -- whose lawsuits generated multi-million dollar verdicts and settlements in the past year. The article calls the Fresno State cases "part of a series of lawsuits that have landed before courts since the U.S. Supreme Court ruled in 2005 that whistle-blowers who allege retaliation in Title IX cases can sue for monetary damages." Along with other, similar cases "from Hawaii to Florida" they "reflect the ongoing tension over the law that bans sex discrimination at schools receiving federal funds."

Other, related pieces provide a timeline of events at Fresno State, a focused piece on the discrimination Lindy Vivas experienced at Fresno State, a separate article about Johnson-Klein's trial and astounding jury verdict, and an interview with Karen Moe Humphreys, the former Berkeley swim coach whose retaliation case settled for $3.5 million, and an article about a gender equity complaint against the University of Southern California that has been under investigation for 10 years.

[thanks, D.C.]

Milutinovich is Woman of the Year

Former Fresno State associate athletic director Diane Milutinovich will be honored today by the California State Senate as Woman of the Year for the 16th district, the Fresno Bee reported. State Senator Dean Florez nominated Milutinovich for "her many contributions to women's athletics and her unwavering fight for gender equity in higher education."

Last October, Milutinovich settled her gender discrimination lawsuit against Fresno State for $3.5 million. She retired from Fresno State after 27 year of service as a coach and administrator, but continues her advocacy for Title IX, attending all of the hearings for Senator Florez's Select Committee on Gender Discrimination.

Congrats Diane! Your honor is well-deserved.

Another Thing in Common

Fresno State and Florida Gulf Coast University have been compared for evoking similar claims of widespread sex discrimination in their athletic departments. So it is worth noting another thing they have in common. They both hired female head coaches this week.

Fresno State announced that it has hired Lauren Netherby-Sewell, formerly of Hofstra, as its new volleyball coach. The other two finalists for the position were men. Netherby-Sewell succeeds Ruben Nieves, who went 18-71 in three seasons after taking over for Lindy Vivas in 2005. This brings the total number of female head coaches at Fresno State to four (out of fourteen): Margie Wright (softball), Becky Malmo (equestrian), and Angie Cates (golf).

On the other coast, FGCU announced that Jennifer Magley, a woman of color currently serving as an assistant coach at Wichita State, would be new head coach of it women's tennis team. She takes the reigns from Webb Horton, the men's tennis coach, who had doubled as the interim women's team coach for the last two seasons. Also, it has hired LPGA veteran Terry Jo Myers to coach the men's and women's golf team. She replaces former women's golf coach Holly Vaughn, who "resigned" last fall, and men's golf coach Jim Suttie, who will "remain with the program and provide instruction." With these new hires, FGCU now has two female head coaches (not counting Carry Lundy, who is serving as the interim women's volleyball coach in the wake of Jaye Flood's termination) out of 12.

Hopefully, with these new hires, both universities are on the way to establishing a critical mass of female head coaches in their respective athletic departments. This would be a step in the right direction if these univerities want to mitigate and move beyond the hostile and retaliatory environments that female coaches have been subjected to, or allegedly subjectly to (in FGCU's case), there.

Johnson-Klein Accepts Revised Damages Award

A brief update to last week's post about the choice confronting Stacy Johnson-Klein in the wake of a judge's ruling on Fresno State's post-trial motions: accept a revised damages award of $6.6 million in place of the $19.1 million the jury awarded her in December, or roll the dice with a new jury.

We thought she would take the $6.6, and she did.

Fresno State could still appeal the judge's ruling. But SJK is looking forward to getting on with her life, telling the Bee that she plans to write a book about her life and become a national advocate for stronger gender-equity laws.

Take the $6.6

Yesterday a judge in Fresno issued an order throwing out the $19.1 million judgment against Fresno State awarded to former women's basketball Stacy Johnson-Klein last fall, saying he will order a new trial unless Johnson-Klein accepts a reduced award of $6.6 million instead. She has until February 22 to decide. (Fresno Bee's coverage is here.)

Judge Black reasoned that while the component of the jury award based on past and future economic damages (lost pay) was supported by the evidence, there was insufficient evidence to support its conclusion that Stacy Johnson-Klein deserved the $14 million in noneconomic damages (emotional harm). He noted, "In an extensive search of the case law involving employment discrimination, the court has located not a single case where a comparable emotional distress award has been made....Even in this state famous for runaway juries, nothing was found approaching this award." Consequently, he reassessed the value of Johnson-Klein's emotion distress to $600,000 (past) + $950,000 (future).

In our earlier post about Fresno State's post-trial motions, we suggested that this was the aspect of the jury's decision that was most vulnerable to reversal, and suggested that would seem to be an appropriate result. I think this is actually a no-brainer for Johnson-Klein: take the $6.6. This is an appropriate assessment of damages for past and future economic harm and a generous assessment of emotional harm. Fellow Fresno State plaintiff Lindy Vivas received $5.8 million a case where Fresno State's defense was, IMHO, even weaker.

In the same order, Judge Black rejected Fresno State's arguments that lack of evidence on the jury's findings on liability (as opposed to damages) warranted new trial or a judgment notwithstanding the verdict. The jury had substantial evidence from which to find that sexual harassment, gender discrimination, and retaliation occurred, he concluded.

Judge Black also rejected Fresno State's argument that juror misconduct occurred.

Fresno Bee editorial

Check out this editorial in the Fresno Bee where writer Matt James chastises the university, in the wake of its recent decision to add back women's swimming and diving, for its lack of foresight, economic savvy and inattention to Title IX issues. Going through some of the school's recent history, he points out some of the inconsistencies in their decision-making processes.

Fresno State Adds Women's Swimming and Lacrosse

Fresno State Athletic Director Thomas Boeh announced on Monday that the University will add two women's athletics teams -- swimming/diving and lacrosse -- in the next academic year in an effort to come into compliance with Title IX.

The basis for this decision is the analysis of the University's Gender Equity Task force, which examined all athletic department offerings this fall. It concluded that Fresno State satisfied Title IX's requirements with respect to equitable participation opportunities because the percentage of athletic opportunities for women (59.6%) was proportional -- actually, higher -- to the percentage of women in the student body (58.6%).

However, the University does not presently comply with the additional requirement that the percentage of scholarship dollars to female athletes approximate the percentage of female athletes. At Fresno State female athletes receive only 46% of the scholarship dollars, while constituting 52%* of the student athlete population. Due to NCAA scholarship caps, Fresno State could not increase the number of scholarships awarded in its existing women's sports, so to equalize scholarship dollars, it had to either add new women's teams or reduce the scholarships awarded to male athletes. The decision to add women's swimming and lacrosse, both sports with high NCAA scholarship caps, followed.

Fresno State used to sponsor a women's swimming and diving team, but cut the team in 2003, along with men's soccer and men's track and field and cross country, as a cost-saving measure.

*The percentage of female athletes is lower than the percentage of female athletic opportunities because an individual athlete may compete in more than sport.

Top ten of 2007

[This was promised two days ago but, well, it just didn't happen. Please don't hold it against it us. We promise it does not an indication of a pattern in the new year.]

Below are what we saw as the top ten Title IX stories of the year. As Ebuz noted to a reporter from Inside HigherEd not too long ago, it was a good year to be a Title IX plaintiff. You will see this reflected below, but other events were pivotal as well. The list is in no particular order--we could say it's because we here at the Title IX Blog don't like to hierarchize, but really it's impossible to figure out what was the most significant story of the year. There were so many times this year we just found ourselves saying to one another: "No way. Really?" And in a good way.

1. University of Colorado settles sexual harassment case with two former students who accused the university--now with a new president and athletic director--of failing to do enough to remedy the situation with football recruit parties that lead to their sexual assaults. We expect to see a very positive ripple effect from this case in future sexual harassment cases.

2. All things Fresno State. Three cases of discrimination, three wins (we consider settlement a win in this situation). Great record for Title IX--not so good for Fresno State, California taxpayers, and university president John Welty who we predict (because it is the time of year for making predictions) will not make it through 2008 in his current position. We also predict that as exciting as Stacy Johnson-Klein's $19.1 million jury award was--it will not stand up. We expect a reduction in the amount and hope Fresno does not push for a new trial. And though the cases of Lindy Vivas, Diane Milutinovich and Johnson-Klein seem to have reached the denouement, don't expect 2008 to be a good time for Fresno State. An assistant in the athletic department filed a discrimination suit at the end of 2007. We will have to wait and see what Fresno learned this past year as they approach this new charge of discrimination.

3. The anniversary. 2007 marked the 35th anniversary of the legislation and it seemed every media outlet in the country (and beyond) covered it some way. It was all very celebratory and certainly we celebrated too, but much of this coverage failed to critically address the backlash against Title IX. Luckily there were plenty of opportunities this year to correct all the misinformation about the law that came from sports writers, non-sports writers, television commentators, bloggers, and people with all sorts of opinions. But the anniversary also provided a great opportunity for assessment and discourse about the future. We were excited to be a small part of this conversation not only on this blog but at events like the Girls and Women Rock Conference in Cleveland last April.

4. Jennifer Harris v. Rene Portland. The lawsuit got settled; the terms and gathered evidence were sealed, but we heard things here and there and read between the lines and generally were pleased. Then we were even more pleased when Portland resigned shortly after the season ended. Jennifer Harris deserves the utmost respect and many thanks for being the first person to stand up to Portland's racist, sexist, and homophobic behavior.

5. Florida Gulf Coast University. Pat Griffin has dubbed FGCU "Fresno east." Not a nickname you want to have hanging around your athletic department as it tries to become a more serious contender in DI athletics. What FGCU might learn from Fresno is hard to discern right now. The administration does not seem to think it is, in any way, in the wrong in its treatment of female coaches, very few of whom actually remain at the school. But just like their counterparts across the country, these women are fighting back. And they are making homophobia a more salient issue in the discussion of their treatment.

6. UNC's Anson Dorrance is going to stand trial for sexual harassment. This case has been ongoing for years, but in April, assuming no settlement is reached (which is a big assumption given the precedent that seems to have been set in 2007) head soccer coach Dorrance will finally have to answer for his treatment of his players and the sexualized atmosphere he created on the team.

7. Cheerleading. Yep. We wrote about cheerleading a fair amount this year given it is not even an NCAA-approved sport. This did not stop University of Oregon, though, from creating only the second varsity-level competitive cheer program in the country (after Maryland). The addition of a non-sanctioned sport alone would have created some controversy (as it has at UMD) but the decision to add competitive cheer just as Oregon was cutting wrestling (and simultaneously reinstating baseball) created quite a stir. Things may have settled a bit at Oregon but the issue of competitive cheer as sport that counts toward Title IX compliance is not likely to go away soon and, though it may not happen this year, I would not be surprised to see a lawsuit brought by a club sport player whose team did not get elevated to varsity status because cheerleading did.
The other big cheerleading news was at the high school level where most cheer teams are not considered sports but rather constitute support for sports teams. This means, under Title IX, if you provide such support to your boys' teams, you must do so for your girls' teams. This was the issue at hand in New York, when a mother of a female basketball player protested the lack of cheerleaders at the girls' games and their constant presence on the boys' sidelines. And despite our awareness of entrenched gender norms in this society, we were a little surprised at the backlash engendered by the mandate for equal amounts of cheering that seemed to stem largely from a general feeling that girls should not be cheering for other girls.

8. Softball fields. It is not much of an exaggeration to say that we found about a story almost every week about the condition of softball fields. Most came out of high schools, but a few were about college fields as well. Parents, players, concerned citizens have been filing complaints about how the inferior fields are a violation of Title IX. Why softball fields? They are a very tangible measure of compliance. Look at the baseball field; look at the softball field. Are there lights, concession stands, same level of maintenance, outright ownership, suitable dugouts, fences, bleachers, etc. on both fields? It is difficult to defend a softball field that is lacking in any of these things when the field used by the baseball team has them. And that is why so many softball fields across the country this year got some major face lifts.

9. Seasons of change in Michigan. It finally ended. The case against the Michigan High School Athletic Association ended last April when the Supreme Court denied the organization cert. This has meant that the lower court's decision that MHSAA was in violation of Title IX and the Equal Protection Clause in its scheduling of girls' sports out of their traditional seasons has stood. Michigan high schools have had to change their schedules accordingly. The controversy this case created was enormous and the incivility of the discussions was disheartening. We hope that 2008 is the proverbial calm after the storm and that everyone is working more willingly than not toward dealing effectively with the scheduling changes.

10. Boosters. Almost as ubiquitous as the stories about softball fields were the stories about booster club funds. Yes, money raised by booster clubs must be considered in the quest for equitable support of girls' and boys' teams. High schools in Pennsylvania and California are addressing and accounting for booster club funds right now. More stories like this and the other ones we covered this year are likely to emerge in the coming year.