UConn soccer player can win Title IX discrimination following punishment for giving the middle finger on national TV

The Court of Appeals has ruled that a female soccer player can sue the University of Connecticut for gender discrimination after the college revoked her soccer scholarship for giving the finger on national TV during a post-game celebration.

The case is Radwan v. Manuel, issued on November 30. This is my third installment on this case. The first two blog posts addressed plaintiff's unsuccessful free speech and due process claims, both of which lost on qualified immunity grounds. This post covers the statutory gender discrimination claim, for which there is no qualified immunity defense. 

Defendants said they had to revoke the scholarship because giving the finger to the world at large was serious misconduct. But, plaintiff says, male athletes at UConn faced lesser or no discipline at all for comparable acts of misconduct. The question is whether these male athletes were "similarly-situated" under Title IX (the federal law prohibiting discrimination in schools) so that plaintiff can compare herself to them. Title VII, which addresses employment discrimination, also uses the similarly-situated analysis in disparate treatment claims, making this case a useful guide for employment cases. Courts in Title IX cases borrow from Title VII cases in resolving these issues. The Court of Appeals (Bianco, Carney and Komitee [D.J.]) says a jury can find in plaintiff's favor. Summary judgment is reversed and the case will proceed to trial.

One male comparator was a football player who kicked the football into the stands during a game on purpose. That male player's name is in the opinion, and I am sure he appreciates having this incident memorialized in a court ruling for all eternity. He was not disciplined or denied his scholarship for this stunt, which was not only unsportsmanlike but potentially dangerous, as someone could have been hurt by the football. In contrast, plaintiff's fleeting middle-finger posed no risk of hurting anyone. The Court of Appeals says the football-kicker is a legitimate comparator under Title IX.

Another male comparator was a soccer player who was arrested for theft and only got a warning. This student had no scholarship. More comparators: four male UConn basketball players, two of whom had scholarships, missed curfew during a tournament in Puerto Rico and were sent home to Connecticut. Nothing happened to these male athletes.

The Court of Appeals often does not find that the plaintiff in a disparate treatment case can identify comparators. The University in this case had all sorts of arguments why these male athletes were not comparable to plaintiff, but the Court says the jury could find otherwise. The Court emphasizes that a plaintiff does not have to show the comparators were supervised by the same people. Instead, the plaintiff has to show they were subject to similar standards of behavior. The Court notes that it has never endorsed the "same decisionmaker" requirements in disparate treatment cases, not even in Title VII cases. It rejected such a defense in 2001, and it rejects that defense again in this case. Such a defense is too rigid and does not account for the fact that many workplaces and other areas of our world are too large to have the same supervisor/decisionmaker for everybody. In athletic cases like this one, the defendant would be insulated from liability because we have numerous sports teams with different coaches and decision makers. 

To win the case, plaintiff also has to show the University's reason for revoking the scholarship was a pretext for discrimination. But the jury can reject those excuses at trial. This analysis would apply in Title VII cases as well. The Court of Appeals does not often find that the plaintiff in an employment discrimination case can prove pretext; the Court only says so once or twice a year. Plaintiff can show pretext here because the University has given inconsistent reasons for the scholarship revocation. While the coach said plaintiff had no prior discipline, the Athletic Director said it was not just the vulgar gesture that got her in trouble but other (unidentified) actions as well. This kind of inconsistency can prove pretext. Also, while the coach said the middle-finger was an unprecedented and "devastating" occurrence, he told plaintiff it was just a "silly mistake" and that plaintiff was a "good kid" who made "one mistake." And while defendants were just going to issue plaintiff a written reprimand and that a more severe punishment would be "excessive," somehow she wound up losing her scholarship, which drove her from UConn and into the arms of Hofstra University. Finally, the Court says, the jury may infer pretext because the defendants arguably did not follow its own procedures while imposing discipline. That procedural deviation can prove pretext under Stern v. Columbia University, 131 F.3d 305 (2d Cir. 1997).