Trial News

The Sixth Circuit has affirmed summary judgment for the defendants in a case involving a high school football coach who repeatedly directed gender-based insults at his players. The court found the conduct “distasteful, and no doubt offensive to many” but ruled it did not violate Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination in federally funded education programs. It also ruled the conduct did not constitute the intentional infliction of emotional distress under Ohio law. (Chisholm v. St. Marys City Sch. Dist. Bd. of Educ., 2020 WL 104598 (6th. Cir. Jan. 7, 2020).)

Doug Frye coached football at St. Marys from 1998 to 2010. But his first formal reprimand occurred in 1995 at Bucyrus City Schools when he was punished for directing obscene language at players. He faced similar allegations throughout his career. In 2012, the Ohio Department of Education (ODE) investigated Frye for allegedly harassing players while coaching in Wapakoneta; under the resulting consent agreement, Frye retained his teaching license and coaching permit, but his employer had to submit quarterly reports to the state about Frye’s treatment of students.

In 2014, St. Marys rehired Frye as the football coach. There, he continued using offensive terms, specifically “pussy, bitch, and pretty boy.” One player, Reid Lininger, told his parents about Frye’s behavior. Lininger’s mother contacted James Hollman, the district athletic director, for information on how to file a formal complaint but took no further steps after being referred back and forth from Hollman to district superintendent Shawn Brown.

During the 2015 season, another football player, Dane Chisholm, was voted off St. Marys’s team by his teammates—a decision Frye and Hollman did not overturn—after Frye accused Chisholm of insubordination and intentionally blowing a play during a game. Chisholm’s father contacted Lininger’s father to discuss Frye. After speaking with the parents of some other players, the fathers submitted a complaint to the ODE and asked Brown and Hollman to remove Frye and his staff from their coaching and teaching positions.

St. Marys’s school board investigated, and after interviewing 11 players and some parents—but not Lininger or his father—its final report concluded that the allegations against Frye were unsupported. The fathers appealed, but no additional action was taken. The ODE also concluded that disciplinary action against Frye was unnecessary.

Lininger, allegedly bullied off the field as other students mimicked Frye’s behavior, ultimately transferred to another school for his senior year. He and Chisholm later filed separate complaints in federal district court in Ohio against Frye, Hollman, Brown, and the St. Marys school board. The court granted summary judgment to the defendants on all claims; the plaintiffs appealed but pursued only their claims under Title IX and for the intentional infliction of emotional distress. Their cases were then consolidated.

The Sixth Circuit began its analysis by describing football’s prominence in American culture and how the sport’s physical demands are “not for the fainthearted.” After reviewing Frye’s history of abusive conduct, the court then discussed whether the plaintiffs were entitled to relief under Title IX. The plaintiffs argued that by calling them gender-based derogatory terms, Frye characterized them as feminine—while making clear that feminine qualities were shameful in football players—and harassed them to the extent that they were ultimately denied the benefits of the quality education they should have received at St. Marys.

The court was unpersuaded, noting that Title IX is “not a ‘general civility code,’” and that the use of gendered terms alone does not constitute sex-based discrimination. The court emphasized the lack of evidence that “Frye favor[ed] one sex over the other”—with an all-male football team, there was no evidence he favored male students over female ones—and found that this “shortcoming dooms any claim for relief under the traditional understanding of Title IX.”

Referencing the landmark Price Waterhouse v. Hopkins (490 U.S. 228 (1989)) case, which involved Title VII claims, the court also found that Frye’s comments were not unlawful sex stereotyping under Title IX. In Price Waterhouse, the plaintiff was targeted for a perceived failure to follow “proscriptive gender norms” about how women should appear and act in the workplace. But here, the court wrote, Frye’s offensive language did not further a sex stereotype because he was criticizing the players for not being “‘tough’ enough”—a quality that “while sometimes celebrated in men is certainly not discouraged in women.”

The court observed that—in contrast to Price Waterhouse, in which the plaintiff’s professional success did not require a traditionally feminine appearance—toughness is necessary on the football field. “To Frye’s somewhat boorish mind, a ‘pussy’ was a wimp or coward . . . but, critically, not a feminine individual. . . . Resilience . . . and possibly even a measure of disregard for one’s physical well-being are necessary ingredients for success in football. And that is true for male and female players alike,” the court wrote.

And even if Frye’s language were sex-based discrimination, the court found that it was not “severe, pervasive, and objectively offensive” enough to deprive the plaintiffs of educational opportunities, as required under Title IX. Again, the court referenced the context in which Frye’s language was used, noting that on the football field, “it is not unheard of for coaches and players alike to use offensive or gendered language, especially in the heat of a game.” Although critical of Frye’s methods, the court concluded that his use of gendered insults did not violate Title IX. 

Turning to the state law claim, the Sixth Circuit outlined the four factors required to plead intentional infliction of emotional distress in Ohio: the defendant intended to cause emotional distress or knew or should have known his or her actions would cause such distress, the conduct was so extreme that the community considered it “utterly intolerable,” the conduct was the proximate cause of the plaintiff’s injury, and the plaintiff’s mental anguish was such that “no reasonable man could be expected to endure it.” Quoting Burkes v. Stidham (668 N.E.2d 982 (Ohio Ct. App. 1995)), the court found that the plaintiffs could not meet their pleading burden for either the second or the fourth elements. Affirming summary judgment for the defense, the court concluded that the claim must fail because “[a]ll things considered, Frye’s statements were not utterly intolerable in a civilized community.”

One judge dissented from this part of the court’s ruling. Although she agreed that the context of Frye’s conduct should be considered, she wrote that the majority “overlooks important aspects of that context. This is not a case of a professional or collegiate football coach employing tough coaching methods to motivate consenting adults. . . . [I]t appears instead that Frye used his position of authority to degrade, name-call, and single out minor students over an extended time and on a near-daily basis.” Based on this and the record showing Frye’s history of abusive conduct and its impact on the plaintiffs, she argued that the intentional infliction of emotional distress claim should have been allowed to proceed.

“The district court and Sixth Circuit have confirmed that all arguably applicable state or federal claims that could have shielded minor students from a coach’s regular and repeated verbal abuse do not in fact protect them,” said Columbus, Ohio, attorney Mark Weiker, who represents the plaintiffs. “In short, high school coaches operate within the law when they direct insults such as ‘pussy’ at their minor athletes, even on a near-daily basis.”

“Without the local school board or state department of education taking action to remove a verbally abusive coach, there is no remedy,” Weiker continued. “In this case, we had a  football-focused local school board and a state department of education that, incredibly, did not think the allegations were serious enough to warrant discipline, even though the coach had been disciplined by the state for the exact same behavior a few years prior. If counsel and clients in similar situations are unlucky enough to encounter such apathy at the local level in the future, there may be no legal options in the Sixth Circuit.”

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