AD’s Title IX Complaints Lead to Whistleblower Claim

In employee termination, it is sometimes difficult to determine when an employer crosses the line into illegality. This is especially true when the employee has a difficult time working with others in the organization, while at the same time raising questions about the practices or behavior of his or her supervisors.

In order to protect from retaliation those public employees who are willing to raise such questions, especially in cases where the complained-about conduct violates the law, states and the federal government have passed whistleblower protection statutes. However — as the court's decision in Cass v. Town of Wayland, 383 F.Supp.3d 66 (2019) illustrates — one of the biggest issues the courts face in any whistleblower case is determining whether the terminated employee was being punished or rather fired for legitimate, non-retaliatory reasons.
 

'A walking Title IX violation'
In the spring of 2013, Stephen Cass signed an employment contract to be the athletic director for Wayland (Mass.) Public Schools for the 2013-14 school year.

Shortly after starting his new job, tensions arose between Cass and Wayland's coaches over the athletic department's budget and fundraising policy for sports teams. On Nov. 24, 2013, Cass sent WPS superintendent Paul Stein an email emphasizing his concerns about the imbalance in fundraising between different sports teams, and a resulting disparity in funding between the boys' and girls' teams. Throughout the following spring, Cass continued to meet frequently with school officials about fundraising, fiscal issues and problems with specific coaches.

Prior to being given a new contract for the 2014-15 school year, Cass generally received a favorable performance evaluation. However, the evaluation identified two areas in which Cass could improve. One, the school wanted him to build better relationships with the coaching and teaching staffs. Two, Cass needed to get administrative support for any initiatives that he wanted implemented, instead of having them emanate solely from the athletic director.

During his second year, Cass continued to work on issues of fiscal responsibility within the athletic department. At the same time, Cass's relationships with Wayland High School principal Allyson Mizoguchi and some of the school's coaches were becoming strained. According to Mizoguchi, Cass's new policies and lack of interpersonal skills were frustrating some coaches and forcing her to spend too much time on athletics issues.

In a September 2014 email to Mizoguchi in which Cass noted additional complaints about some coaches, he also voiced various Title IX concerns. Mizoguchi forwarded the email to WPS assistant superintendent Brad Crozier, stating that she had "stopped trusting that Stephen's communication can be civil or productive." On Sept. 15, Cass emailed Crozier, Mizoguchi and others stating, "Wayland High School athletics is a walking Title IX violation. The gender inequity is atrocious and has been so for some time."

At the time, Crozier oversaw WPS human resources functions, including the handling of Title IX complaints. Crozier immediately responded to Cass and the two met on Sept. 18 to discuss Cass's Title IX concerns. At some point during the meeting, Cass stated that he raised the Title IX concerns to "cover my ass." Cass explained that he "was putting Mr. Crozier on notice that if they fire me for upholding gender equity, they would be in violation of the law."

When Crozier asked Cass about specific data or instances to support his allegations, Cass provided an excel sheet he maintained detailing expenditures broken out by sports team, but not cost per athlete. Crozier asked Cass to provide more background on the expenditures and data by sport for both boys and girls broken out by cost per athlete. Cass did not respond to this email.

Throughout the fall of 2014 and spring of 2015, Cass continued to experience tension with some of Wayland High School's coaches on non-gender-related issues. On May 8, 2015, Stein formally advised Cass that Wayland would not be renewing his contract for another year. The letter did not list a specific reason for the decision.
 

Timing is everything
In suing the Town of Wayland, Cass asserted that the school district did not renew his employment contract as retaliation for his raising concerns about gender equity in the athletic program in violation of Title IX and the Massachusetts Whistleblower Act. The Town of Wayland, on the other hand, contended that Cass was not renewed for entirely performance-driven reasons.

In looking at Cass's Title IX claim, the court held that the law prohibits retaliation against third parties, such as teachers and coaches, because they complained about Title IX violations.

To show a Title IX retaliation claim, the court held that the law must involve a burden-shifting framework. First, the plaintiff — in this instance, Cass — must establish a prima facie case. To do so, he must show that he engaged in activity protected by Title IX, that the alleged retaliator knew of the protected activity, that the alleged retaliator subsequently undertook some action disadvantageous to him, and that a retaliatory motive played a substantial part in prompting the adverse action.

Once the plaintiff has made a prima facie showing, the defendant — the town of Wayland — must articulate a legitimate, non-retaliatory reason for its employment decision. If Wayland meets its burden, then Cass must show that the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant's retaliatory animus.

Wayland acknowledged that Cass engaged in activity protected by Title IX, that school officials were aware of his complaints, and that the school subsequently did not renew Cass's contract. However, the town argued that a retaliatory motive did not play a "substantial part" in prompting the adverse action.

To show that it did play a substantial part, Cass relied primarily on the timing of the non-renewal to establish his prima facie showing. Cass told school officials that Wayland athletics was a "walking Title IX violation" in September 2014, and later sent letters on March 31, 2015, and May 5, 2015. In his March 31 letter to Stein and Mizoguchi, Cass wrote, "[t]here is a significant gender-equity issue in athletics resulting from fundraising and gifts received from outside agencies that support our athletic program."

The next day, Mizoguchi wrote in reference to Cass, "whistleblower," "Title 9 issue?" and "May 1 letter." Within a week, on April 8, school officials decided not to renew his contract. On May 5, Cass wrote Stein a long letter that included complaints about gender equity. Three days later, Stein sent Cass a formal letter indicating that Wayland would not be hiring him for a third year. The court held that the proximity between Cass's actions and his firing was sufficient to make a prima facie case, because it is strongly suggestive of retaliation.

Meanwhile, the Town of Wayland offered legitimate, non-retaliatory reasons for not renewing Cass's contract. In their view, he had poor relationships with certain coaches, he was a high-maintenance employee who left his supervisor ranting voicemails, and he was an ineffective leader with a caustic communication style. The court found that there is no "mechanical formula" to determine whether their proffered reasons are pretextual, and the question of retaliation must be answered by the jury.
 

More burden-shifting standards
As for Cass's claim that Wayland violated the Massachusetts Whistleblower Act when it fired him, the court held that the state whistleblower claim mirrors his Title IX claim, with the addition that he also alleges Wayland retaliated against him because he described improper fundraising practices.

The Act provides: "An employer shall not take any retaliatory action against an employee because the employee ... [d]iscloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer ... that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law" [Mass. Gen. Laws ch. 149, § 185(b)(1)].

Similar to Title IX, the Massachusetts Whistleblower Act requires a burden-shifting standard. Therefore, for the plaintiff Cass to prevail, he must show that he engaged in protected activity and that his participation in that activity played a substantial or motivating part in the retaliatory action. The employer may subsequently avoid liability by proffering a legitimate, nonretaliatory reason for the adverse action. The burden then shifts back to Cass, the employee, to adduce some significantly probative evidence showing both that the proffered reason is pretextual and that a retaliatory animus sparked his dismissal.

Despite all of the negative employee traits attributed to Cass, a federal jury in Boston found that the school violated the state's Whistleblower Act and awarded him $250,000.

In particular, the court found that voicing allegations of unequal treatment of boys' and girls' sports teams, a protected action Cass admits he took to protect his job, played a substantial or motivating part in Wayland's failure to renew Cass's contract in 2015, and thus constituted a retaliatory action.
 

Clear communication
Whistleblower cases can be difficult for employers to defend, so what lessons can sport and recreation administrators learn from Cass v. Town of Wayland?

First, when dealing with employees, especially in cases that may result in disciplinary action, it is essential that employers remember the importance of communicating in clear, direct terms. In addition, employers should know that anything they say or write down, whether in a third-party email or personal diary, could come out in a lawsuit. Therefore, employees should be professional at all times, keeping personal opinions to themselves.

Second, a lot of employment termination disputes could be solved if each employee was provided with a clear, written personnel policy manual. However, be aware that personnel policy manuals can be a double-edged sword. On one hand, the manual defines standards and procedures for performance evaluations and discipline. To the extent that these policies and procedures are followed, the manual can help avoid legal problems. However, if the personnel policy manual is overly complex, not properly distributed or not enforced, a whole new set of issues and liabilities may arise.

This article originally appeared in the September 2020 issue of Athletic Business with the title "AD’s Title IX complaints lead to whistleblower claim." Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.