Case Information
*2 HERNÁNDEZ, District Judge:
Plaintiffs, a former assistant high school cross-country coach and three student athletes, bring claims for retaliation under Title IX, claims for retaliation in violation of the First Amendment under 42 U.S.C. § 1983, and related claims under Oregon statutes and the Oregon Constitution against McMinnville School District (“MSD”) and the principal and athletic director of McMinnville High School. Defendants move for summary judgment on all claims. The Court grants in part and denies in part Defendants’ motion [18].
BACKGROUND
Plaintiff Ty Rollins (“Rollins”), the father of plaintiffs Parker Rollins (“Parker”) and A.R., was an assistant coach for the McMinnville High School cross-country team from 2016 to 2019. McMinnville High School has one cross-country head coach who oversees both the boys’ and girls’ teams. Rollins served as an assistant to coach the girls’ team, whose members included Parker and A.R. (“Student Plaintiffs”). [1] Rollins Decl. ¶ 2, ECF 24-28. Rollins was also a volunteer coach over the distance runners for the girls’ track team. Middleton Decl. Ex. 7 (“Downs Dep.”) 26:3-7, ECF 24-7. During the 2018 season, the girls’ cross-country team won the Pacific Conference championship for the first time in fifteen years, and Rollins was nаmed Pacific Conference girls’ cross-country coach of the year. Rollins Decl. ¶ 3. At the end of the 2018/2019 school year, head cross-country coach Vic Downs retired. Id. at ¶ 5. Rollins did not apply for the head coach position. Id. at ¶ 6. In the summer of 2019, MSD hired Drew Wasmund to be the new head coach of the McMinnville cross-country team. Middleton Decl. Ex. 1 (“McIrvin Dep I”) 66:6-10, ECF 24-1. Wasmund had previously been a coach at Wilsonville High School. Vickers Decl. Ex. 2 (“McIrvin Dep. II”) 64:8-18, ECF 19-2.
At the request of McMinnville High School athletic director Ryan McIrvin, Rollins met with Wasmund shortly after he was hired. After that meeting, through a google search, Rollins discovered two 2016 college newspaper articles that mentioned a romantic relationship between Wasmund, who was 27 years old at the time, and a 19-year-old female student athlete he had coached at Clackamas Community College. Rollins Decl. ¶ 6; Pl. Ex. 15. Clackamas Community College did not renew Wasmund’s coaching contract in 2016 because of that relationship. McIrvin Dep. I 79:17-20.
On July 2, 2019, Rollins showed McIrvin the two articles and told him he was conсerned about Wasmund coaching girls at McMinnville High School. Rollins Decl. ¶ 7. During that meeting, Rollins also discussed what he perceived to be existing inequities between the girls’ and boys’ cross-country programs. Rollins said that the girls’ cross-country team had not received enough coaching attention from the previous head coach, which he was concerned would continue under Wasmund. McIrvin Dep. I 73:2-19. Rollins then turned in his ID badge and resigned, stating that he would not coach alongside a head coach who had “crossed the line by dating an athlete.” Middleton Decl. Ex. 3 (“Rollins Dep. I”) 51:21-25, ECF 24-3. After the meeting, Rollins sent a follow-up email to McIrvin and McMinnville High School principal Amy Fast that expressed the same concerns. Pl. Ex. 13; Vickers Decl. Ex. 1 (“Rollins Dep. II”) 79:3-5, ECF 19-1.
On July 11, McIrvin and Principal Fast met with cross-country team parents to discuss the hiring of Wasmund. McIrvin Dep. I 93:13-17. At that time, neither McIrvin nor Fast expressed an intention to reverse the decision to hire Wasmund. Middleton Decl. Ex. 2 (“Fast Dep. I”) 71:20-72:4, ECF 24-2. Rollins was not at that meeting, but McIrvin told the cross- country team members and their parents that he hoped Rollins would return as аssistant coach. In McIrvin’s words, he “spent the entire month trying to keep [Rollins] in the program.” McIrvin Dep. I 130:23-24.
During the summer of 2019, new coach Wasmund held workouts with the cross-country team. Some girls attended the workouts regularly, but others did not, because they “did not feel safe with [Wasmund].” Parker Decl. ¶ 4. Parker Rollins attended one workout but did not go back. Id. S.B. attended three or four workouts until she found out about Wasmund’s prior relationship with a student athlete. Middleton Decl. Ex. 5 (“S.B. Dep. I”) 39:10-25. Five members of the girls’ team worked out with Rollins instead. Vickers Decl. Ex. 7 (“Hanna Dep. I”) 39:3-8, ECF 32-7.
Rollins met with McIrvin and Principal Fast again on July 17 to further discuss his concerns about the hiring of Wasmund. Rollins Decl. ¶8. On July 18, McIrvin and Fast met with Parker, A.R., S.B., and few other girls on the cross-country team. Parker Decl. ¶ 5. The student athletes told McIrvin and Fast that they did not feel safe with Wasmund as their coach because of his previous sexual relationship with an athlete he coached. ; Fast Dep. I 82:3-6. The students also complained about inequities between the girls’ and boys’ cross-country programs, including differences in the amount of money spent on each program and differences in the gear they received. McIrvin Dep. I 105:14-23; Fast Dep. I 82:3-23.
On July 21, Rollins met with Wasmund and McIrvin. Although Rollins continued to express concerns about Wasmund and MSD’s treatment of the girls’ cross-country program, McIrvin was “very optimistic . . . that [Rollins] was going to coach with [Wasmund].” McIrvin Dep. I 110: 16-18. On July 27, Rollins hosted a meeting of team parents to discuss the new head coach and the upcoming season. Pl. Ex. 20, ECF 24-20. After the meeting, one parent circulated a publication called “Staying in Bounds: An NCAA Model Policy to Prevent Inappropriate Relationships Between Student-Athletes and Athletics Department Personnel.” Pl. Ex. 21, ECF 24-21. The document describes the NCAA’s policy that any sexual relationship between a coach and an athlete is considered “sexual abuse,” regardless of the athlete’s age and whether the relationship is consensual. Id. at 5-7. Rollins then texted the parent group, stating that he would “be contacting the superintendent and school board” and that he “strongly recommended” the other parents do the same. Pl. Ex. 20. On the text exchanges, some parеnts agreed with contacting the superintendent, school board, and the local newspaper. Id. Other parents did not agree. Id. Rollins texted Wasmund and told him about the parents’ conversation. Pl. Ex. 30 , ECF 24-20. Wasmund asked that the parents not talk to the media about his past relationship and offered to resign from the head coach position. Rollins also emailed McIrvin, explaining the outcome of the parent meeting and his communication with Wasmund. Pl. Ex. 22, ECF 24-22. McIrvin replied that he “[did] not support the method and/or potential actions taken by the group of parents seeking [Wasmund’s] removal.” Id.
On or about August 7, 2019, after Wasmund had resigned, McIrvin and Fast told Rollins that he would not coach cross-country at McMinnville High School again. Rollins Dep. 77:3-7; 78:6-9. McIrvin was specifically concerned about Rollins “going to the media . . . and using that threat as a way to . . . get [Wasmund] to resign.” McIrvin Dep. I 112: 5-7.
On August 10, McMinnville announced to team parents by email that Wasmund had resigned, and that Josh Hanna had been hired as interim cross-country head coach. Pl. Ex. 23, ECF 24-23. On August 12, Rollins emailed McIrvin his resume and expressed his interest in being rehired as assistant cоach for the girls’ team. Pl. Ex. 24, ECF 24-24. McIrvin responded that he and Fast “[did] not believe [Rollins] being a part of the coaching staff this year is the right fit.” Id. McIrvin asserts that his decision to not hire Rollins was because he was trying to put a coaching staff together that would “create unity” in the cross-country program. McIrvin Dep. II 137:18-23. McIrvin notes that some parents had told him that they supported the hiring of Wasmund and were not in favor of his resignation. Id. at 124:5-15. One parent said her daughter had not had a “great experience” with Rollins in the past. Id. at 124:10-12; 137:14-17.
McIrvin then hired Taylor Ford as a half-time assistant for the cross-country team. McIrvin Dep. I 141:2-20; Middleton Decl. Ex. 8 (“Ford Dep.”) 8:22, ECF 24-8. Ford was a recent college graduate who had previously run cross-country at McMinnville High School and in college, but she had never coached before. McIrvin Dep. I 141:5-7; Ford Dep. 8:6-7. Ford was not specifically told that she was hired to coach the girls’ team. Ford Dep. 8:8-9. She came to practices three days per week, at which time she would run with the girls and time their workouts. Id. at 9:1-22. Ford states that she did not do a lot of coaсhing and that her role was mostly to encourage the girls and support them at cross-country meets. Id. at 11:14-15; 14:8-9.
During the 2019 season, Parker and other members of the girls’ team met twice with Principal Fast to express concerns about Hanna’s coaching style and the lack of coaching they were receiving. Vickers Decl. Ex. 3 (“Fast Dep. II”) 132:6-11, ECF 19-3. The girls complained that they were not being pushed hard enough. at 132:24-133:1. Parker complained that Assistant Coach Ford did not do much coaching and that Head Coach Hanna did not spend time specifically with the girls’ team. Middleton Decl. Ex. 4 (“Parker Dep.”) 58:3-20, ECF 24-4. Hanna later explained that his strategy had been to reduce the girls’ workouts as a way to prevent injury to the top runners. Middleton Decl. Ex. 10 (“Hanna Dep. II) 37:18-21, ECF 24-10. Hanna set a goal for the girls to win second place in the conference instead trying to repeat as conference champions. Vickers Decl. Ex. 4 (“Hanna Dep. III) 38:10-15, ECF 19-4. He explained that the lack of depth on the team and the amount of training it would take to repeat as conference chаmpions would risk injury. Id. at 37:24-38:3.
Before the summer of 2019, along with coaching the girls’ cross-country team, Rollins had volunteered in various ways with athletics in the McMinnville school system. He worked with students in the weight room during a high school physical education teacher’s strength and conditioning class. Middleton Decl. 11 (“Houston Dep.) 12:19-24, ECF 24-11. In the fall of 2019, McIrvin told the physical education teacher that Rollins could not volunteer with the class. Id. at 22:4-13. Rollins had also volunteered as a youth wrestling coach and was asked by other coaches to work with the middle school wrestling team. Middleton Decl. Ex. 6 (“Barich Dep.”) 14:5-13. During the fall of 2019, Rollins was asked to leave a middle school wrestling practice because he did not have the necessary paperwork on file to volunteer. at 19:13-23. Even after completing the paperwork, Rollins was still not allowed to volunteer with the wrestling team. Rollins Decl. ¶ 24. In addition, the new coach for the track team, Jennifer Gubrud, declined Rollins’s request to volunteer as distance coach as he had in the past. Pl. Ex. 27. Though she was never specifically told she could not take Rollins as a volunteer, Gubrud “got the impression” from Fast and McIrvin that “it might not be a good idea.” Middleton Decl. Ex. 9 (“Gubrud Dep.”) 24:20-21.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett
,
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.”
Fed. Trade Comm’n v. Stefanchik
,
The substantive law governing a claim determines whether a fact is material.
Suever v.
Connell
,
“Summary judgment is improper where divergent ultimate inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, LLC v. Mercedes Benz USA, LLC , 771 F.3d 1119, 1125 (9th Cir. 2014) (internal quotation marks omitted); see also Int’l Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc. , 752 F.2d 1401, 1405 (9th Cir. 1985) (“Even where the basic facts are stipulated, if the parties dispute what inferences should be drawn from them, summary judgment is improper.”).
DISCUSSION
Plaintiffs bring five claims for relief: (1) retaliation in violation of Title IX against MSD; (2) claims under 42 U.S.C. § 1983 for First Amendment violations against MSD, Principal Fast, and Athletic Director McIrvin; (3) retaliation in violation of Or. Rev. Stat. (‘O.R.S.”) 659.852 against MSD; (4) violation of O.R.S. 659A.203 for retaliation against whistleblowing by a public employee against MSD; and (5) violation of the free speech guarantee of Article I, section 8 of the Oregon Constitution against MSD. Defendants move for summary judgment on all claims. I. Title IX Retaliation
Title IX of the Education Amendments оf 1972 prohibits discrimination “on the basis of
sex” by education institutions that receive federal funding. 20 U.S.C. § 1681(a). Title IX implies
a private right of action against educational institutions that intentionally discriminate.
Cannon v.
Univ. of Chicago
,
For Plaintiffs to succeed on the merits of their Title IX claim for retaliation, they must
first make out a prima facie case by showing (1) they engaged in a protected activity; (2) they
suffered an adverse action; and (3) there was a causal link between the two.
Emeldi v. Univ. of
Oregon
,
A. Plaintiffs’ Prima Facie Case
1.
Protected Activity
To engage in protected activity that forms the basis for a Title IX retaliation claim,
plaintiffs must show they complained about “sex discrimination.”
Jackson
,
Defendants dispute that Plaintiffs speaking out against MSD’s hiring of Wasmund is
protected activity. Plaintiffs claim that their acts of protest against Wasmund are protected under
Title IX for two reasons: (1) if a similar sexual relationship had occurred between a coach and
student athlete at McMinnville High School, the coach would have violated school district
policy; and (2) deliberate indifference to reports of past sexual misconduct that create a
heightened risk of sexual harassment or abuse can form the basis for a Title IX claim.
See
Karasek v. Regents of Univ. of California
,
Plaintiffs’ first reason is unavailing. Wasmund did not engage in a sexual relationship with a high school student—his relationship was with a consenting 19-year-old college student. MSD рolicy about relationships between coaches and students is not relevant to Wasmund’s past relationship at Clackamas Community College. [3] Nothing about MSD’s policy suggests that complaining about Wasmund’s past relationship constitutes complaining about gender discrimination at McMinnville High School.
Second, Plaintiffs’ reliance on Karasek is misplaced. In Karasek , the Ninth Circuit recognized a “pre-assault claim” as a cognizable theory of Title IX liability. A pre-assault claim requires the plaintiff to show facts that “(1) a school maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual harassment that was known or obvious (3) in a context subject to the school’s control, and (4) as a result, the plaintiff suffered harassment[.]”
Because Plaintiffs bring Title IX retaliation claims rather than equal treatment claims, they need not show that they suffered from harassment or abuse. But Plaintiffs must present some facts to support an inference that MSD’s decision to hire Wasmund “created a heightened risk of sexual harassment that was known or obvious.” Plaintiffs presеnt no facts indicating that Wasmund’s prior consensual relationship with a 19-year-old college student, even if it could be considered sexual abuse, created a heightened risk of sexual harassment or abuse to students at McMinnville High School. Student Plaintiffs’ description of feeling uncomfortable running under Wasmund does not support an inference that Wasmund would engage in any conduct that violates Title IX. Neither Parker nor A.R. report that they received or observed other student athletes receiving unwanted attention from Wasmund. Plaintiffs provide no reports of Wasmund engaging in sexual harassment or abuse during the two-year period he coached at another high school after he left Clackamas Community College. Thus, MSD cannot be considered deliberately indifferent to a heightened risk of sexual harassment or abuse, and Plaintiff’s complaints about the hiring of Wasmund do not constitute protected activity under Title IX. For the purposes of their Title IX retaliation claims, Plaintiff’s only engaged in protected activity to the extent that they complained to McIrvin and Fast about existing gender inequities in the McMinnville High School cross-country program.
2. Adverse Actions Defendants argue that even if Plaintiffs engaged in protected activity, they suffered no adverse actions. Rollins asserts that the adverse actions against him were (1) not being allowed to work as assistant coach for the cross-country team despite having had great success in previous years; and (2) being barred from his previous volunteer coaching opportunities. Defendants point out that Rollins was not fired from his position, but voluntarily resigned. Defendants also assert that the school district did not prohibit Rollins from volunteering, but only asked him to complete appropriate paperwork to volunteer. Defendants note that Rollins was still able to volunteer in some capacity within the school district.
The Ninth Circuit uses a reasonable person standard to determine whether an adverse action occurred. In other words, the element is met when the challenged action by the defendant might have dissuaded a reasonable person from sрeaking out against discrimination. Emeldi , 698 F.3d at 726. Being terminated from a position is not a threshold requirement. In Emeldi , the court found an adverse action where the university did not dismiss a PhD candidate, but “as a practical matter, rendered her unable to complete the degree.” Id. In addition, the Ninth Circuit uses the same criteria for adverse actions under Title IX as it does for employment discrimination claims under Title VII of the Civil Rights Act of 1964. Title VII recognizes a refusal to hire on the basis of race, color, religion, sex, or national origin as an adverse act. 42 U.S.C. § 2000e-2(a)(1).
Thus, the relevant question is not whether Rollins was terminated from his coaching position or prevented from volunteering, but whether a reasonable person would have been afraid to speak out based on the actions MSD took. Whether a reasonable person in Rollins’ position would have been deterred from speaking out is a factual dispute that the Court cannot resolve on a motion for summary judgment.
Student Plaintiffs allege that MSD’s adverse act against them was hiring an unqualified
assistant coаch for the girls’ team and not coaching them effectively in retaliation for their
protected conduct.
[4]
Pl. Resp. 16, ECF 23. For student athletes, inadequate coaching and a lack of
individualized attention constitutes an adverse action.
Ollier
,
Student Plaintiffs present evidence that after winning the conference championship the prior year, they received little attention and substandard coaching during the fall 2019 cross- country season. Taylor Ford, the newly hired half-time assistant, admits that she did not do a lot of coaching. Parker Rollins states that she had to take on some of the coaching responsibilities and “had to help [Ford] understand what she needed to be doing and what a coach would do.” Parker Decl. ¶ 6. Student Plaintiffs also claim that the new head coach, Josh Hanna, “did not spend time specifically with the girls’ tеam” and “worked almost exclusively with the boys.” MSD’s decision to hire an inexperienced assistant coach, by itself, is not enough to be considered an adverse action against Student Plaintiffs. But Student Plaintiffs present facts showing they also received less attention and less training from the new head coach, particularly in comparison to the attention given to the boys’ team. Thus, viewed in the light most favorable to them, Student Plaintiffs assert enough facts from which a reasonable jury could find an adverse action on the part of Defendants.
3.
Causation
Next, for a prima facie Title IX retaliation claim, Plaintiffs must show a causal link
between their protected activity and Defendants’ adverse acts against them. The causal
connection element is construed broadly. Plaintiffs must only show that the protected activity
and adverse action “are not completely unrelated.”
Emeldi
,
As to Plaintiff Rollins, viewing the facts in the light most favorable to Plaintiffs, causation can be inferred from a temporal relation between Rollins’s protected activity and Defendants’ alleged adverse action. Prior to Rollins’s meeting with team parents to discuss the girls’ cross-country program, McIrvin wanted to retain Rollins as assistant coach. Even after Rollins turned in his keys and ID badge, McIrvin, “spent the entire month trying to keep [Rollins] in the program” and get him to return as assistant coach. McIrvin Dep. I 130:23-24. But when Rollins expressed his intention to contact the superintendent and the school board, McIrvin changed his stance and refused to rehire Rollins as assistant coach. According to Rollins, McIrvin told him that he would never coach at McMinnville High School again. Regardless of whether McIrvin and MSD had other, legitimate reasons to not rehire Rollins, the timing of their refusal to rehire is sufficient to create a question of fact regarding causation. Construing the facts in the light most favorable to the non-moving party, Rollins has established a prima facie case of Title IX retaliation.
For Student Plaintiffs, Defendants allege that their retaliation claims are causally reversed. Def. Reply 7, ECF 31. Defendants claim that Student Plaintiffs did not like their new coaches and then complained. Id. But Defendants misstate Plaintiff’s allegations. First, Student Plaintiffs present evidence of Defendants’ retaliatory acts against them during the fall 2019 cross-country season. Those alleged acts were committed after Student Plaintiffs had met Fast and McIrvin that July to express their concerns about MSD’s disparate treatment of the girls’ cross-country team. Second, Student Plaintiffs can assert Title IX retaliation based on the protected activity of their father and former coach, Plaintiff Rollins. See T.L. ex rel. Lowry , 68 F. Supp. 3d at 1314-15. The adverse acts by MSD against Student Plaintiffs occurred after Rollins stated he would contact the superintendent and school board about McMinnville High School’s disparate treatment of the girls’ cross-country team. As with Rollins, the temporal relation between their complaints about the cross-country program and the adverse acts by MSD provides sufficient circumstantial evidence of causation. Therefore, Student Plaintiffs have also made out a prima facie case of Title IX retaliation.
B. Retaliatory or Pretextual Reasons for Adverse Action Because Rollins can make a prima facie showing of Title IX retaliation, the burden shifts to Defendants to present a non-retaliatory reason for not rehiring Rollins and preventing him for volunteering. Defendants present evidence that some student athletes did not like Rollins coaching style and felt comfortable with Wasmund as coach. Parents were fractured in their feelings about Wasmund’s forced resignation, and Defendants assert that they wanted a coaching staff that would unify the cross-country community. Because they legitimately regarded Rollins as an instigator of Wasmund’s resignation, Defendants have established a legitimate, non- retaliatory reason for not rehiring Rollins as assistant coach. Defendants also state legitimate reasons for preventing Rollins from participаting in certain volunteer activities, such as not wanting him to work with athletes during school hours and requiring him to complete appropriate paperwork. Defendants, in fact, assert that they did not prevent Rollins from volunteering—they only asked that he “follow the same rules as everyone else.” Def. Mot. 9.
Although Defendants present a legitimate reason for preventing Rollins from coaching
and volunteering, a jury could reasonably conclude that Defendants’ explanations are pretextual.
As with causation, temporal proximity of a plaintiff’s protected activity and a defendant’s
adverse action can inform the pretext analysis.
T.L. ex rel. Lowry,
Defendants also present legitimate, non-retaliatory reasons for reducing Student Plaintiffs’ training and not pushing them to win the conference championship again. Coach Hanna makes a compelling case for his stated coaching strategy. He wanted to prevent injury to the top runners on a team that did not have a lot of depth. However, the strategy decisions do not provide legitimate reasons for paying little attention to the girls’ team. A reasonable jury could find Hanna’s explanation for reducing the girls’ coaching to be pretextual.
Construing the facts in the light most favorable to Plaintiffs, both Rollins and Student Plaintiffs have made out prima facie cases of Title IX retaliation, and a reasonable jury could find that Defendants’ hiring decision as to Rollins and coaching decisions as to Student Plaintiffs were pretextual. Thus, the Court denies summary judgment for Defendants on Plaintiffs’ Title IX retaliation claims.
II. Plaintiffs’ § 1983 Claims: First Amendment Retaliation
Defendants McIrvin, Fast, and MSD move for summary judgment on Plaintiffs’ § 1983 claims for retaliation against protected speech in violation of the First Amendment. Plaintiff Rollins and Student Plaintiffs seek both money damages and injunctive relief against future “unlawful retaliation because of speech on matters of public concern” by MSD. Compl., Prayer for Relief (a), (c).
A. Retaliation in Violation of the First Amendment 1. Ty Rollins
The Ninth Circuit analyzes First Amendment retaliation claims in the public employment
setting under the framework established by
Pickering v. Bd. of Educ.
,
Defendants concede that Rollins spoke as a private citizen, but they argue that he did not
speak on a matter of public concern. Speech involves a matter of public concern when it relates
to “any matter of political, social, or other concern to the community.”
Connick v. Myers
, 461
U.S. 138, 146 (1983). But speech that involves “individual personnel disputes and grievances” is
not a matter of public concern.
McKinley v. City of Eloy
,
Next, whether Rollins’s protected speech was a substantial motivating factor in Defendants’ decision to not rehire him as assistant coach is a question of fact. As with Plaintiffs’ Title IX claim, the temporal association of Rollins’s speech and Defendants’ decision not to rehire him suggests a causal relationship. But the ultimate determination of whether Defendants’ motivation for the actions they took can only be made by weighing disputed facts. A reasonable jury could find that Defendants prevented Rollins from coaching because he spoke out about gender inequities in the McMinnville High School cross-country program.
Similarly, whether Defendants had adequate justification to treat Rollins differently than the membеrs of the general public requires resolution of disputed facts. Defendants assert that their adverse employment decision, even if motivated by Rollins’s protected speech, was justified by their goal of preventing disruption and promoting unity within the cross-country program. Plaintiffs dispute whether there was any evidence of potential disruption to the cross- country program. These factual disputes cannot be resolved by this Court on a motion for summary judgment.
2.
Student Plaintiffs
Defendants also move for summary judgment on Student Plaintiffs’ claim brought under
the First Amendment. The Supreme Court has clearly stated that public school students have
First Amendment free speech rights.
See Tinker v. Des Moines Indep. Sch. Dist.
,
Defendants concede that Student Plaintiffs’ complaints about gender inequity in the cross-country program is constitutionally protected speech. But Defendants assert that Student Plaintiffs’ claims are “wholly derivative of Ty Rollins’ claims” and are causally reversed. Def. Mot. 13. Defendants again misstate Student Plaintiffs’ claim. Student Plaintiffs met with Defendants McIrvin and Fast in July 2019 to express their concerns about Wasmund and about gender discrimination in the cross-country program. They also refused to workout with Wasmund that summer because they were concerned about unwanted sexual attention. Plaintiffs then allege they were provided inadequate coaching and not pushed hard enough during the fall 2019 cross-country season in retaliation for speaking out during the summer. If Defendants deliberately provided poor or inadequate coaching to a previously successful team, a reasonable jury could find that such action would chill a student athlete of ordinary firmness from voicing concerns about the program. See Arizona Students’ Ass’n. v. Arizona Bd. of Regents, 824 F.3d 858, 868 (9th Cir. 2016) (“[T]he test for determining whether the alleged retaliatory conduct chills free speech . . . asks whether the retaliatory acts would lead ordinary students in the plaintiffs’ position to refrain from protected speech.”) (internal quotation marks and citation omitted).
The next questions are whether Student Plaintiffs expressive conduct was a substantial
motivating factor for Defendants to provide inadequate coaching and whether Defendants
“would have taken the same action even in the absence” of Students Plaintiffs’ speaking out
against Wasmund and the program.
Pinard
,
B. Qualified Immunity
Defendants McIrvin and Fast assert that they are entitled to qualified immunity. A
defendant is entitled to qualified immunity if their conduct “does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v.
Fitzgerald
¸
The Supreme Court has repeatedly admonished courts “not to define clearly established
law at a high level of generality.”
Mullenix v. Luna
,
Plaintiffs have created questions оf fact as to whether Defendants Fast and McIrvin
violated Plaintiffs’ First Amendment rights. The Court must now consider whether those rights
were clearly established by fall 2019, which was the time of the alleged unconstitutional actions.
“To determine whether [an official] violated clearly established law, we look to cases relevant to
the situation [the official] confronted, mindful that there need not be a case directly on point.”
A.K.H. rel. Landeros v. City of Tustin
,
The Supreme Court has clearly established that a public employer violates a prospective
employee’s rights when it refuses to hire the candidate in retaliation for engaging in
constitutionally protected free spеech.
See Perry v. Sinderman
,
As to Student Plaintiffs,
Pinard
established that in the Ninth Circuit, school districts may
not retaliate against student athletеs who engage in protected speech.
The Court concludes that because the constitutional rights in question were clearly established, Defendants McIrvin and Fast are not entitled to qualified immunity. Summary judgment on Plaintiffs’ § 1983 claims is denied.
C. Monell Liability for McMinnville School District Defendants argue that there is no basis for MSD to be liable for the alleged violation of Plaintiffs’ constitutional rights by Defendants McIrvin and Fast.
For a municipality to be liable under § 1983, Plaintiffs must show that a municipal
custom or policy caused the violation of their constitutional rights.
Monell v. Dep’t. of Soc.
Servs.
,
As discussed above, the Court finds that questions of fact preclude granting summary judgment for the individual Defendants on Plaintiffs’ constitutional claims. The Court now analyzes each of the avenues through which Plaintiffs allege Monell liability to determine whether MSD is entitled to summary judgment on Plaintiffs’ Monell claims.
First, Plaintiffs allege that Defendants retaliated against them pursuant to a policy,
custom, or practice. Compl. ¶ 39. Generally, to succeed on a
Monell
claim under this theory, the
custom or practice “must be so ‘persistent and widespread’ that it constitutes a ‘permanent and
well settled [municipal] policy.’
” Trevino v. Gates
,
Second, Plaintiffs’ base their
Monell
claim on Defendants McIrvin and Fast being the
“final policymakers with respect to retaliatory actions.” Compl. ¶ 40. Determining whether an
official is a final policymaker is a “legal question to be resolved by the [court].”
Shutlz v.
Multnomah Cnty
., No. 08-CV-886-BR,
Under Oregon law, school boards have general final policymaking authority for school districts. See O.R.S. § 332.072 (“[D]istrict school boards have control of the district schools and are responsible for educating children residing in the district.”). The McMinnville School Board establishes general policy for hiring employees. Pl. Ex. 31, ECF 24-31. Plaintiffs assert that the school board delegated authority for hiring all personnel to the superintendent who then delegated final policymaking authority for hiring coaches at McMinnville High School to Defendants McIrvin and Fast. Pl. Resp. 29. The question the Court must ask is “whether the policymaker merely has delegated discretion to act, or whether it has done more by delegating final policymaking authority.” Christie , 176. F.3d at 1236.
Defendants McIrvin and Fast made the decision to not rehire Rollins, and they are also
responsible for the decisions to hire coaches who allegedly provided Student Plaintiffs with
substandard coaching. But the authority to make discretionary hiring decisions does not by itself
constitute final policymaking authority.
See Vejo v. Portland Pub. Schs.
,
Third, to establish that a municipal entity ratified a subordinate’s discretionary decision,
plaintiffs must show that the entity both approved of the decision and the basis for it.
Gillette
,
III. Retaliation Against Students under O.R.S. 659.852
Student Plaintiffs bring a claim against MSD for retaliation in violation of Oregon state law. Compl. ¶¶ 43-46. Under Oregon law, “[a] student of an education program may not be subjected to retaliation by an education program for the reason that the student has in good faith reported information that the student believes is evidence of a violation of a state or federal law, rule or regulation.” O.R.S. 659.852(2). [6] The statute authorizes students or their parents or guardians to bring civil actions against entities they allege violate the statute. O.R.S. 659.852(3).
The Court finds that a claim under the O.R.S. 659.852 should be analyzed in the same manner as a Title IX retaliation claim. [7] Thus, as with their Title IX claim, questions of fact exist as to whether MSD retaliated against Student Plaintiffs in violation of O.R.S. 659.852. Summary judgment for Defendants on this state statutory claim is denied.
IV. Retaliation by Public Employer under O.R.S. 659A.203
Plaintiff Rollins brings a claim for retaliation under an Oregon whistleblower law that
protects public employees. Under Oregon statute, a public employer may not “take or threaten to
take disciplinary action against an employee for the disclosure of information that the employee
reasonably believes is evidence of . . . [a] violation of any federal, state or local law, rule or
regulation by the public . . . employer.” O.R.S. 659A.203(1)(b)(A). Importantly, the statute only
protects employees from retaliatory actions by their public employers.
See Delia v. Benton Cnty
.,
No. 05-6123-HO,
Rollins was not employed by MSD at the time of the alleged retaliatory acts. Rollins resigned from his assistant cross-country coach position in July 2019. He alleges that the school district retaliated against him in fall 2019 by not rehiring him and by barring him from volunteer coaching. These alleged retaliatory actions occurred when he was no longer an employee.
Rollins asserts that he brings this claim under section (1)(d) of O.R.S. 659.203A rather than section (1)(b), and that section (1)(d) is not limited to employees . [8] Pl. Resp. 33. However, Rollins provides no basis for his assumption. In fact, the text of section (1)(d) refers to sections (1)(a)-(c) of the statute, which specifically apply only to “employees.” O.R.S. 659A.203(a)-(d). In addition, administrative rules clarify that section (1)(d) only applies to employees. Or. Admin. R. 839-010-0050. [9] Rollins, therefore, has no legal basis for his claim under O.R.S. 659A.203. The Court grants summary judgment for Defendants on this claim.
V. Violation of the Oregon Constitution Article I, Section 8
Plaintiffs’ final claim asserts that MSD violated the free speech guarantee of the Oregon
Constitution.
[10]
This Court has previously stated that Article I, section 8 does not provide greater
protection than the First Amendment against retaliation.
German v. Eudaly
, No. 3:17-cv-2028-
MO,
As to Plaintiffs’ claims for injunctive relief, there is no guiding caselaw for retaliation claims under the free speech clause of the Oregon Constitution. While no state or local laws are at issue here, Plaintiffs assert that their claim is an as-applied challenge to Defendants’ unconstitutional application of their statutory power to conduct school district business. Pl. Resp. 32. But Plaintiffs provide no support for their proposition. Because on its face, Article I, section 8 applies only to enacted laws that restrain free speech, and no law or ordinance or even policy is at issue here, the Court finds no basis to grant relief to Plaintiffs under the Oregon Constitution. Summary judgment for Defendants on the state constitutional claim is granted.
CONCLUSION
The Court GRANTS in part and DENIES in part Defendants’ Motion for Summary Judgment [18]. The Court grants summary judgment for McMinnville School District on Plaintiffs’ claims under 42 U.S.C. § 1983, O.R.S. 659A.203, and Article I, section 8 of the Oregon Constitution. The Court denies summary judgment for McMinnville School District on Plaintiffs’ claims under Title IX and O.R.S. 659.852 and for Defendants Fast and McIrvin on Plaintiffs’ § 1983 claims.
IT IS SO ORDERED. November 27, 2021
DATED:_______________________.
______________________________ MARCO A. HERNÁNDEZ United States District Judge
Notes
[1] Plaintiff S.B. ran track at McMinnville High School but never ran as member of the cross- country team. Supp. Vickers Decl. Ex. 4 (“S.B. Dep. II”) 28:11-12, ECF 32-4.
[2] Defendants also acknowledge that whether actual inequities exist between the girls’ and boys’ cross-country programs is irrelevant “because plaintiffs make title IX retaliation claims, not Title IX equal treatment claims.” Def. Mot. 7 n.6.
[3] Plaintiffs place great emphasis on a National Collegiate Athletic Association (“NCAA”) model policy statement that describes any relationship between coaches and players as sexual abuse. D EBORAH L. B RAKE & M ARIAH B. N ELSON , S TAYING B OUNDS : A N NCAA M ODEL P OLICY TO P REVENT I NAPPROPRIATE R ELATIONSHIPS B ETWEEN S TUDENT -A THLETES AND A THLETICS D EPARTMENT P ERSONNEL 5, Pl. Ex. 21. But Clackamas Community College athletics are governed by the National Junior College Athletic Association rather than the NCAA.
[4] Plaintiff S.B. cannot make this claim because she was not a member of the cross-country team during the relevant time period.
[5] Plaintiffs and Defendants agree that although Rollins was not an emрloyee at the time of the alleged retaliation, Pickering provides the appropriate framework for analyzing his claims because he was an applicant for public employment.
[6] The definition of “retaliation” includes “other adverse action that substantially disadvantages a student in academic, employment or extracurricular activities.” O.R.S. 659.852(1)(b).
[7] Although there is no case law that applies O.R.S. 659.852, the statute’s text outlines elements that are nearly identical to those required for Title IX retaliation claims.
[8] O.R.S. 659.203(1)(d) states that is unlawful for a public employer to “[d]iscourage, restrain, dissuade, coerce, prevent or otherwise interfere with disclosure or discussions described in this section.”
[9] Or. Admin. R. 839-010-0050(1) states that “ORS 659A.203 (1)(b) and (d) require that a public employer not prohibit, discourage, restrain, dissuade, coerce, or otherwise interfere with any employee disclosing to any person, or take or threaten to take disciplinary action against any employee for disclosing information[.]” (emphasis added).
[10] “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever[.]” O R . C ONST . art. I, § 8.