By Abigail Funk

Abigail Funk is an Assistant Editor at Athletic Management. She can be reached at: afunk@momentummedia.com.

Over the past two years, Fresno State University has handed over $14 million to three former athletic department employees who filed Title IX retaliation lawsuits against the school. In October, Florida Gulf Coast University surrendered more than $3 million to two former coaches who sued for Title IX retaliation. Iowa State University, San Diego Mesa College, and the University of Nevada are currently embroiled in similar suits.

Ready or not, Title IX retaliation lawsuits are a force to be reckoned with. "While we used to talk only about the discrimination of athletic teams, how you treat your coaches has now entered the Title IX discussion in a big way," says Dina Lassow, Senior Counsel at the National Women's Law Center in Washington, D.C. "If they haven't already, athletic departments need to take notice."

And no one is immune. Administrators who are longtime Title IX advocates have been hit with lawsuits, and a few high school coaches have cases pending. Fired coaches who feel they have been wronged are speaking up and juries are listening. In every lawsuit resolved so far, the plaintiff has received damages, either by court award or out-of-court settlement.

While each case is its own story, one thing is very clear: More than ever before, athletic administrators need to be proactive about gender equity. They also need to be extra careful in their evaluations of coaches and staff, especially if an individual has ever made a Title IX complaint.

RECENT CASES
The flurry of retaliation lawsuits stems from a 2005 U.S. Supreme Court ruling in a case brought by Roderick Jackson, former Head Girls' Basketball Coach at Ensley High School in Birmingham, Ala. Jackson had complained about gender inequities at his school and was fired soon after. He attempted to sue his school district for what he felt was an unfair dismissal, but found that, as a whistleblower, he was not protected under Title IX.

He took his case all the way to the Supreme Court, which set new precedent by ruling in favor of Jackson's right to Title IX protection. Although Jackson's case has not yet been resolved, it opened the door for others to sue if they felt they had been fired in response to speaking up about Title IX inequities.

The cases at Fresno State have gotten the most publicity. Former Head Women's Basketball Coach Stacy Johnson-Klein and former Head Women's Volleyball Coach Lindy Vivas separately filed retaliation suits against Fresno State in October 2005 and February 2006, respectively. Both coaches alleged they were fired because they were advocates for gender equity. The trials took place in 2007, and juries awarded Vivas $5.85 million and Johnson-Klein $19.1 million, although both amounts were later reduced through settlements after Fresno State appealed the original decisions.

Also in 2007, Fresno State settled a retaliation suit with former Associate Athletic Director and Senior Woman Administrator Diane Milutinovich. She alleged that she was reassigned and then eventually fired because of her advocacy for Title IX.

And Fresno State's retaliation troubles don't look to be over yet. In late February, Former Men's and Women's Assistant Track and Field Coach Ramona Pagel filed a suit against the school, alleging discrimination and retaliation because she was passed over to interview for the head coaching job, then did not have her assistant coaching contract renewed.

Smaller schools have also been affected. At Florida Gulf Coast, former Head Women's Volleyball Coach Jaye Flood filed a retaliation suit against the school soon after she was suspended in January 2008, alleging mistreatment for speaking up about gender inequities at the school. Former Head Women's Golf Coach Holly Vaughn later joined the suit, and in October 2008, FGCU settled with both coaches. Flood received just under $3 million and Vaughn just under $500,000.

San Diego Mesa is currently battling a retaliation suit from former Head Women's Basketball Coach Lorri Sulpizio and former Director of Basketball Operations Cathy Bass. Both were dismissed in April 2007, and allege being wrongfully fired for their sexual orientation and complaining about gender equity issues at the school.

Some of the most surprising cases have come from schools with strong Title IX advocates in leadership positions. At Nevada, Athletic Director Cary Groth has been hit with a retaliation suit filed by former Head Women's Soccer Coach Terri Patraw. And at Iowa State, Senior Associate Director of Athletics Calli Sanders has watched her former Head Softball Coach, Ruth Crowe, be awarded $287,000 after filing under Title IX retaliation--although the school is asking that the decision be overturned or a new trial granted. Both athletic administrators were unable to comment as their cases are still ongoing.

At the high school level, Exeter (Calif.) High School Head Girls' Basketball Coach Linda Wachter is suing her high school district for retaliation, alleging that her contract was not renewed after she complained about gender inequities. Her case is set for trial in October, but will be heard first by a mediator in June. Wachter is seeking an unlimited amount above $25,000.

The negative consequences of these types of cases are twofold. Besides the monetary repercussions of such lawsuits, there is also the stress and negative publicity that accompany them--on both sides.

"Athletic directors need to know up front that people do not want to sue," Milutinovich says. "Everybody I know who has sued would rather be working. It's so much better to solve the problem internally."

But what exactly does it mean to "solve the problem internally?" It starts with understanding that Title IX is about more than proportionality in participation numbers. And that means really looking at how your women's teams are treated as compared to your men's teams in every area, including facilities, uniforms, booster club monies, administrative support, travel budgets, and coaches' contracts.

"Along with arguing about whether there should be a women's team added at a particular school, Title IX advocates want to know about the perks the teams are getting," says Linda Joplin, Chair of the Athletic Equity Committee at the California National Organization for Women. "Facilities are hugely problematic, and single-sport booster clubs and booster clubs not under the direction of the athletic department at the high school level are situations just asking for trouble."

And if a coach brings any discrepancies to your attention and you do not act on them, then that coach is fired for poor performance, the coach potentially has a claim for retaliation. Yes, the coach needs to prove that his or her firing was not justified, but recent cases show that juries very quickly side with a fired employee. A coach who is angry and confused, and feels his or her career has been ruined due to being dismissed, is a persuasive figure on the stand.

SOME SOLUTIONS
The good news is that there is a lot an athletic director can do to prevent retaliation cases. The first step is to make sure you are in compliance with Title IX by sincerely reviewing your policies and procedures. Areas to look at range from salaries to facilities to uniforms.

The University of Nevada-Las Vegas does this every year by hiring Title IX consultants to do a thorough evaluation of the department. For the past five years, two consultants have annually come to campus for four days to conduct interviews with everyone from the equipment manager to student-athlete tutors to each coach and administrator. The answers to the consultants' questions remain anonymous.

"Our coaches know they will never be named by the consultants, and I think they feel very comfortable in sharing any concerns they may have in how we operate our program," says Mike Hamrick, Director of Athletics at UNLV. "It's important they don't feel threatened and know that what they say is confidential."

The reports have pointed out a few inequities over the years that Hamrick has been quick to address, including the size of facilities and which teams have had priority in scheduling indoor practices. He has found that being transparent about those issues and how the school plans to solve them is the best way to go.

"Their final report doesn't just come to my office and sit on my desk," Hamrick says. "It's reviewed by all of our administrators, the president, our intercollegiate athletic council, and anybody else who wants to see it. We've become a better department by doing this."

At Fresno State, Thomas Boeh was hired as Athletic Director in 2005 in the midst of much turmoil over the coaches' firings and eventual lawsuits. His first step was to hire a Title IX consultant and form a gender equity task force with the president to go through the department with a fine-tooth comb.

The task force, which was made up of people from across campus, reviewed all the components of Title IX, including participation rates, facilities, equipment, travel policies, recruiting dollars, and distribution of financial aid. "From that committee, a gender equity plan was born," Boeh says. "It included the addition of two new sports programs, and we've done a lot of re-working of our facilities, including moving our coaches and support staff administrators into better offices. We've also tried to make our policies and procedures regarding recruiting dollars and travel outside of the conference very consistent across all sports."

Another area of change was coaches' contracts. "We created a matrix for our coaches' letters of appointment," Boeh says. "Our coaches understand that the market drives some of their salaries, but we think it's important that all of our coaches have identical contracts in terms of expectations. The bonus structure is very similar as well."

Christine Grant, Senior Associate at Connecticut-based Sports Management Resources and former longtime athletic administrator at the University of Iowa, adds that transparency is key. "When I was an athletic director, my entire budget was available to anybody on staff who wanted to see it," she says. "And if they saw a discrepancy, I invited them to come ask me about it so I could give them what I hoped was a valid reason. We've each got to be held accountable, and I think the easiest way to be accountable is to be transparent."

From there, it's vital to act on any problem areas. "Once you come up with a report of your deficiencies, if you don't do anything about them, you leave yourself open to someone coming in and saying, 'Five years ago, you knew there was a problem and you still haven't done anything,'" Joplin says. "You must act to fix what's wrong."

Grant advises athletic directors to investigate every complaint they get wind of, even if it might not seem valid. "It is better to err on the side of caution," she says. "Stop and think for a minute, 'If I don't solve this problem that's come to my attention, what could it cost the athletic department, the university, and me personally, and is it worth not addressing it?' In so many cases, the answer is no, it's not worth it. A small problem is much easier to deal with internally than one that gets blown out of proportion."

LOOK BEFORE FIRING
If Title IX compliance is one leg of a retaliation lawsuit, the other needed leg is an unjustified fire. Yet even if a dismissal is completely justified in your mind, you may have a problem if the coach doesn't see it the same way. That's why, more than ever before, following the correct protocol in your evaluations of coaches is critical.

"The firing should never come as a surprise to the coach," Grant says. "Evaluations must be done every year, with problems discussed, and help offered to solve those problems. The coach should always know if there is an issue they were responsible for addressing.

"One of the jobs athletic directors have is to help people grow and develop into better coaches, and you cannot do that without some sort of feedback system," she continues. "Yes, it's difficult to give criticism, but if it's done gently and with an offer of assistance, it can be a positive process. And if the coach chooses not to take the help you've offered or fix the problem you've addressed, you're left with no choice and that's a rightful firing."

You must tread very carefully, however, when the coach you're firing has complained previously about an inequity. "It's vital to document everything, and you have to have specific reason for a termination," Joplin says. "A coach that has always had top notch evaluations until they complained is the kind of historical record that gets you in trouble with the courts."

Since Title IX retaliation suits are fairly new, courts use the well-established Title VII employment discrimination framework to evaluate whether retaliation under Title IX has occurred. The employee first has to show they complained about discrimination and then suffered adverse action--such as termination--as a result. To defend the school, the athletic director must show they had a legitimate reason for the firing and that it wasn't because of the complaint. To rebut, the employee must disprove the athletic director's claims.

One way a coach can do this is to show the athletic director used inconsistent reasoning in the firing decision. "One of the things that enabled the Fresno State women's basketball coach to be successful in her jury trial was that it became obvious the university had a different standard for how they dealt with her compared to the men's basketball coach," Joplin explains. "You need an internal process that is the same, regardless of the gender of athletes that coach is coaching. Even if Coach A deserved to be fired, if Coach B also deserved to be fired and you didn't fire him, you're discriminating against Coach A."

Lassow offers another scenario. "If the athletic director says the reason they fired the coach is because they weren't following correct procedures for something," she says, "and the coach says in defense, 'But you had five other coaches doing things the exact same way I did, and they didn't get fired,' that creates a legitimate retaliation claim under Title IX."

Administrators advise speaking frequently with experts at your school about the issue. "I rely on our human resources people and our attorneys a great deal," Boeh says. "Whenever a coach is not renewed there is a very specific process we go through. I talk to the folks who have the expertise and listen to them very carefully."

"Unless you fully understand retaliation and how vulnerable it makes the university, I say to always get legal counsel before you release somebody," Grant says. "Your attorneys will help guide you through the process and the documentation that must be done."

"I'm not an expert in Title IX," Hamrick adds. "But one thing I learned a long time ago is that talking with experts in an area can make me look like one, too."

SETTING A TONE
What makes one fired coach file suit when another does not? Grant believes a lot of it has to do with setting a tone in your athletic department that exudes fairness and treating everyone with respect.

"Your attitude and how you communicate with your staff is absolutely critical," Grant says. "The minute you ask to see a coach, they shouldn't think, 'Oh no, what have I done wrong?'

"One of the best ways to counter that is by developing the ability to listen," she continues. "I've found that not many of us have that skill down pat. But if you can become known as someone who will listen, even when you don't want to hear what is being said, you develop a trust with your staff."

Grant suggests using an open-door policy that allows a coach to feel safe and comfortable bringing a concern to your attention. "When something is going awry in the athletic department, you want to know about it," she says. "You want to convey the message of 'We're in this together. What can I do to help?' That attitude will get a great reception from your coaches.

"When I was an athletic director, my office was on the third floor and the coaches were on the second floor," Grant continues. "I always made it a point to get down to the second floor as often as I could during the day so that it was natural for them to see me. Someone said something to me years ago that's always stuck with me: Catch people doing the right thing. So that's what I tried to do."

Milutinovich says seeking a diversity of opinion is another way to send the right message to your coaches. "In your coaches meetings, don't just ask the people who always agree with you what they think," she says. "Ask the people who may disagree with you what they think, too, and hopefully you can see where they're coming from and come to a good compromise."

Hamrick also tries to keep the right mentality at the forefront. "Do the right thing," he says. "I don't like to say we're trying to protect ourselves from a lawsuit. We're just trying to do the right thing, and that's an attitude I try to foster throughout our department."

Sidebar: KNOW YOUR HISTORY
What if you're a new administrator at your school and considering terminating a coach? Can you be held accountable for retaliation if you didn't know about a coach's previous complaints? Legal experts say, yes, you can, and suggest carefully researching your new employer's Title IX history.

Dina Lassow, Senior Counsel at the National Women's Law Center in Washington, D.C., recommends sitting down with each coach and administrator to get a sense of the department's culture and if there are any current problems you should be addressing. "Send a strong message to your staff that you're here to treat all of the teams equally," she says. "It's a time when you can set a positive, fair, and balanced tone."

It's also important to get to know your institution's past practices with regards to Title IX, says Diane Milutinovich, former Associate Athletic Director and Senior Woman Administrator at Fresno State, who settled her retaliation suit against the school in 2007. "Find out when teams were started, what their budgets are, how many on-campus and off-campus coaches there are for each team--anything you can measure," she says.

"And if there isn't a documented history, begin one," Milutinovich continues. "It's critical to know what went on before you got there. If you don't know any negative aspects of your institution's history, you're destined to repeat it."

You can also consider conducting an internal evaluation of the department. "Take the time to go to the Women's Sports Foundation and National Women's Law Center Web sites where they have athletic equity compliance questionnaires and checklists," says Linda Joplin, Chair of the Athletic Equity Committee at the California National Organization for Women. "You don't have to spend a lot of money to do an internal analysis of your department. Put together a couple of people to do the checklists and come up with a list of the weaknesses in your programs and fix them."

Sidebar: A COACH'S PERSPECTIVE
Sometimes, avoiding a retaliation lawsuit starts with avoiding a Title IX discrimination lawsuit. In September 2007, Carmyn James, Head Women's Track and Field Coach at the University of Hawai'i, filed a lawsuit alleging discrimination against her team by the school and then-Athletic Director Herman Frazier. But less than three months later, James dropped her suit, explaining that she and Frazier had "positive and productive meetings." What did it take to convince James to reverse her course?

"The lawsuit was never about personal gain or personal attention," James says. "I had been trying to encourage the department to make some better decisions regarding my team, and they weren't following through. At that point I felt painted into a corner and filing the suit was my only option. It was my job to do what was best for my team and not just be quiet and accept the situation."

Before the filing, James had been meeting with Associate Athletics Director Carl Clapp on a regular basis to address 10 areas she was concerned about. They included the team still not having a third full-time assistant coach despite being promised one when she was hired in 2000, and her team's budget not increasing despite an overall athletics budget increase of about $7 million since her hiring, among others. But Frazier was not acting on any of them, James says.

From the day of filing, James had 90 days to actually serve the lawsuit. She says she was fully prepared to drop the allegations if she and Frazier could resolve the issues, and also fully prepared to serve the suit. It wasn't until almost two months after the filing that Frazier, Clapp, and James sat down together.

"I laid everything out on the table," James says. "Herman agreed with me on a few things, was firmly against a few things, and said he was going to take some time to think about it all."

A month later, a follow-up meeting was planned, with just a little more than a week's time before James's deadline to serve the suit. "It turned out Carl couldn't make the meeting, so I stopped by Herman's office and asked him if he was still up for meeting with me," James says. "He said yes and what I think really helped is that we took it out of the office setting and went to a restaurant--just the two of us.

"It was a more relaxed situation, and we were able to talk things over more easily," she continues. "We just kicked back and chatted it through and we came up with a plan to address my list of concerns. We knew some things weren't going to happen overnight, but we put a plan together and I felt really good about everything."

Some of James's friends thought she was crazy for not having Frazier sign any sort of document, and others were worried he would fire her. But James knew she would have a great case for retaliation if that happened, and says she trusted changes were on the way.

Shortly after the meeting, Frazier was fired from his position for unrelated reasons. Jim Donovan, the new athletic director, however, took no time in meeting James's original requests. "He looked at the situation and acted very quickly," James says. "I got my third assistant coach and so did all of the other teams who didn't have one. I got a pay raise, a multi-year contract, and a courtesy car. I just said, 'Wow!'"