Timing is Everything: Recent Case Highlights the Importance of Timing in Retaliation Cases
A recent court decision out of Pennsylvania provides an excellent case study on retaliation rules in Title IX cases. In M.D. v. Trinity Area School District, No. 2:22-CV-517, 2022 WL 9465862 (W.D. Pa. Oct. 14, 2022), a Federal trial court allowed a student’s Title IX retaliation lawsuit against her school to move forward to the discovery stage. A key to the court’s decision was the “suggestive timing” between the student’s participation in the Title IX process and a negative action taken against her by a coach. The case is a good reminder of many of the fundamentals of Title IX retaliation claims, including the importance of timing.
The case involves a 16-year-old female student, M.D., who is on her high school basketball team. She was injured before the 2021 season began. Shortly after tryouts in November, her coach told her she must attend all basketball activities even though she was injured. She would “ride the pine” at games, otherwise known as sitting on the bench.
On December 14, 2021, while at a boys’ basketball game, M.D. and a friend were talking about a sexual assault allegation they had heard. The gossip was that a sexual assault had occurred between students at a party. Two athletic trainers (who were well-trained on Title IX) overheard the conversation and reported it to school administration.
The next day, the Vice Principal called M.D. to the office to write a statement about the sexual assault. She alleges that while she was writing the statement, the Vice Principal asked her how she would feel if her reputation could be potentially ruined by something like what she was reporting, which he called “simply a rumor.”
M.D. then went off to practice later that day, December 15, 2021. Immediately after she arrived, her coach sent her home, claiming that she was changing the practice and M.D. did not need to attend.
Then, the next day, a school administrator and the coach met with M.D. and told her that she could no longer attend practices or games because of the risk of liability for injury from sitting on the bench. According to M.D., there were other injured athletes who were allowed to continue attending practices and games.
The court applied the standard for proving retaliation under Title IX in the courts:
A plaintiff who lacks direct evidence of retaliation must first make out a prima facie case of retaliation by showing (a) that he or she was engaged in protected activity, (b) that he or she suffered an adverse action, and (c) that there was a causal link between the two.
The school did not dispute that M.D.’s report of sexual assault on December 15 was a protected activity under TItle IX. Instead, they disputed whether she suffered an adverse act and whether there was causation. Not surprisingly, the court held that M.D.’s allegation that she was not allowed to continue attending games and practices while other injured athletes were was sufficient to allege an adverse act. It was not persuaded by the school’s claim that the change was not an adverse act because it was based on risk mitigation relating to her injury. Why? Because of M.D.’s allegation that other injured players were allowed to continue riding the bench at games and practices.
Regarding causation, the court explained that a plaintiff must allege facts that would “sufficiently raise an inference that the protected activity was the ‘likely reason’ for the adverse action.” But a plaintiff may do so simply by alleging proximity in timing between the protected activity and the adverse action that is “unusually suggestive” of a retaliatory motive. Here, where M.D. alleged she was sent home immediately upon arriving to practice the day she made her report and then told she could not sit on the bench the next day, the court found the timing to meet the “highly suggestive” standard. Accordingly, the court denied the school district’s motion to dismiss the lawsuit against it and the case was allowed to move forward to the discovery phase of litigation.
There is nothing truly new in this decision. Courts often find periods of time much longer than one day to be sufficient to allege and even prove causation in lawsuits. But the case is an important reminder of just how low the bar is for a plaintiff to allege retaliation against a school, particularly when an adverse action comes quickly after protected activity. Schools should take care when implementing changes that could be seen as negative or “adverse” against a person who is involved in the Title IX process, including individuals like M.D. who are “only” witnesses. That does not mean you must completely avoid such changes completely, but keeping a close eye on timing could help keep your team out of depositions.
If you would like to know more about this case or need assistance with an ongoing Title IX matter, contact us at titleIX@thlaw.com.