Veronica Ollier v. Sweetwater Union High School , 768 F.3d 843 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA OLLIER; NAUDIA No. 12-56348
RANGEL, by her next friends Steve
and Carmen Rangel; MARITZA D.C. No.
RANGEL, by her next friends Steve 3:07-cv-00714-
and Carmen Rangel; AMANDA L-WMC
HERNANDEZ, by her next friend
Armando Hernandez; ARIANNA
HERNANDEZ, by her next friend OPINION
Armando Hernandez, individually
and on behalf of all those similarly
situated,
Plaintiffs-Appellees,
v.
SWEETWATER UNION HIGH SCHOOL
DISTRICT; ARLIE N. RICASA; PEARL
QUINONES; JIM CARTMILL; JAIME
MERCADO; GREG R. SANDOVAL;
JESUS M. GANDARA; EARL WEINS;
RUSSELL MOORE, in their official
capacities,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
2 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
Argued and Submitted
June 3, 2014—Pasadena, California
Filed September 19, 2014
Before: Ronald M. Gould and N.R. Smith, Circuit Judges,
and Morrison C. England, Jr., Chief District Judge.*
Opinion by Judge Gould
SUMMARY**
Civil Rights
The panel affirmed the district court’s judgment granting
declaratory and injunctive relief to plaintiffs in a class action
suit brought in part pursuant to Title IX of the Education
Amendments of 1972, alleging (1) unequal treatment and
benefits in athletic programs; (2) unequal participation
opportunities in athletic programs; and (3) retaliation.
The panel held that Sweetwater Union High School
District and its administrators and board members did not
fully and effectively accommodate the interests and abilities
of female athletes and therefore the district court did not err
*
The Honorable Morrison C. England, Jr., Chief District Judge for the
U.S. District Court for the Eastern District of California, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 3
in its award of summary judgment and injunctive relief to
plaintiffs on their Title IX unequal participation claim.
The panel held that the district court did not abuse its
discretion by: (1) striking the proposed testimony of
Sweetwater’s two experts because the record suggested that
the testimony was based on, at best, an unreliable
methodology; (2) excluding Sweetwater’s 38 untimely
disclosed witnesses from testifying at trial because
Sweetwater’s failure to comply with Fed. R. Civ. P. 26’s
disclosure requirement was neither substantially justified nor
harmless; and (3) declining to consider contemporaneous
evidence at trial.
The panel held that the student plaintiffs had Article III
standing to bring their Title IX retaliation claim arising from
the firing of the softball coach. The panel further determined
that the district court did not clearly err when it found that:
(1) plaintiffs established a prima facie case of Title IX
retaliation; and (2) Sweetwater’s purported non-retaliatory
reasons for firing the coach were pretextual excuses for
unlawful retaliation. The panel held, therefore, that the
district court did not abuse its discretion by granting
permanent injunctive relief to plaintiffs on their Title IX
retaliation claim.
COUNSEL
Paul V. Carelli, IV (argued), Daniel R. Shinoff, and Patrice
M. Coady, Stutz Artiano Shinoff & Holtz, APC, San Diego,
California, for Defendants-Appellants.
4 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
Elizabeth Kristen (argued), Robert Borton, and Kim Turner,
Legal Aid Society Employment Law Center, San Francisco,
California; Vicky L. Barker and Cacilia Kim, California
Women’s Law Center, Los Angeles, California; Joanna S.
McCallum and Erin Witkow, Manatt, Phelps & Phillips, LLP,
Los Angeles, California, for Plaintiffs-Appellees.
Erin H. Flynn (argued), United States Department of Justice,
Civil Rights Division, Appellate Section; Philip H. Rosenfelt,
Deputy General Counsel; Thomas E. Perez, Assistant
Attorney General; Vanessa Santos, United States Department
of Education Office of the General Counsel; Dennis J.
Dimsey and Holly A. Thomas, United States Department of
Justice, Civil Rights Division, Appellate Section, for Amicus
Curiae United States of America.
Fatima Goss Graves, Neena K. Chaudhry, and Valarie Hogan,
National Women’s Law Center, Washington, D.C.; Lauren B.
Fletcher and Anant K. Saraswat, Wilmer, Cutler, Pickering,
Hale & Dorr LLP, Boston, Massachusetts; Megan Barbero,
Dina B. Mishra, and Brittany Blueitt Amadi, Wilmer, Cutler,
Pickering, Hale & Dorr LLP, Washington, D.C., for Amicus
Curiae National Women’s Law Center, et al.
Kristen Galles, Equity Legal, Alexandria, Virginia; Nancy
Hogshead-Makar, Women’s Sports Foundation, Jacksonville,
Florida, for Amicus Curiae Women’s Sports Foundation,
et al.
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 5
OPINION
GOULD, Circuit Judge:
Defendants-Appellants Sweetwater Union High School
District and eight of its administrators and board members
(collectively “Sweetwater”) appeal the district court’s grant
of declaratory and injunctive relief to Plaintiffs-Appellees
Veronica Ollier, Naudia Rangel, Maritza Rangel, Amanda
Hernandez, and Arianna Hernandez (collectively “Plaintiffs”)
on Title IX claims alleging (1) unequal treatment and benefits
in athletic programs;1 (2) unequal participation opportunities
in athletic programs; and (3) retaliation. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
I
On April 19, 2007, Plaintiffs filed a class action
complaint against Sweetwater alleging unlawful sex
discrimination under Title IX of the Education Amendments
of 1972 (“Title IX”), see 20 U.S.C. § 1681 et seq., and the
Equal Protection Clause of the Fourteenth Amendment, see
42 U.S.C. § 1983.2 They alleged that Sweetwater
“intentionally discriminated” against female students at
Castle Park High School (“Castle Park”) by “unlawfully
fail[ing] to provide female student athletes equal treatment
1
Neither of Sweetwater’s briefs on appeal includes argument on
Plaintiffs’ unequal treatment and benefits claim. Thus, Sweetwater has
waived its appeal on that claim. See Hall v. City of L.A., 697 F.3d 1059,
1071 (9th Cir. 2012).
2
Plaintiffs’ 42 U.S.C. § 1983 sex-based discrimination claim dropped
out of the case in July 2010, when the district court severed it from the
Title IX claims upon agreement of the parties.
6 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
and benefits as compared to male athletes.” They said that
female student athletes did not receive an “equal opportunity
to participate in athletic programs,” and were “deterred from
participating” by Sweetwater’s “repeated, purposeful,
differential treatment of female students at Castle Park.”
Plaintiffs alleged that Sweetwater ignored female students’
protests and “continued to unfairly discriminate against
females despite persistent complaints by students, parents and
others.”
Specifically, Plaintiffs accused Sweetwater of “knowingly
and deliberately discriminating against female students” by
providing them with inequitable (1) practice and competitive
facilities; (2) locker rooms and related storage and meeting
facilities; (3) training facilities; (4) equipment and supplies;
(5) transportation vehicles; (6) coaches and coaching
facilities; (7) scheduling of games and practice times;
(8) publicity; (9) funding; and (10) athletic participation
opportunities. They also accused Sweetwater of not properly
maintaining the facilities given to female student athletes and
of offering “significantly more participation opportunities to
boys than to girls[.]” Citing Sweetwater’s “intentional and
conscious failure to comply with Title IX,” Plaintiffs sought
declaratory and injunctive relief under 20 U.S.C. § 1681 et
seq. for three alleged violations of Title IX: (1) unequal
treatment and benefits in athletic programs; (2) unequal
participation opportunities in athletic programs; and
(3) retaliation.3
3
Plaintiffs’ retaliation claim was premised on (1) the July 2006 firing of
Chris Martinez, “a highly qualified and well-loved softball coach,” which
occurred shortly after Castle Park received a formal Title IX complaint;
(2) a ban on a parent-run snack stand during softball games; and (3) a ban
on parental assistance in softball coaching.
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 7
A
In July 2008, Plaintiffs moved for partial summary
judgment on their Title IX claim alleging unequal
participation opportunities in athletic programs. Sweetwater
conceded that “female athletic participation” at Castle Park
was “lower than overall female enrollment,” but argued that
the figures were “substantially proportionate” for Title IX
compliance purposes, and promised to “continue to strive to
lower the percentage.” As evidence, Sweetwater noted that
there are “more athletic sports teams for girls (23) than . . .
for boys (21)” at Castle Park.
The district court gave summary judgment to Plaintiffs on
their unequal participation claim in March 2009. See Ollier
v. Sweetwater Union High Sch. Dist., 604 F. Supp. 2d 1264(S.D. Cal. 2009). The court found that “substantial
proportionality requires a close relationship between athletic
participation and enrollment,” and concluded that Sweetwater
had not shown such a “close relationship” because it “fail[ed]
to provide female students with opportunities to participate in
athletics in substantially proportionate numbers as males.”
Id. at 1272. Rejecting one of Sweetwater’s arguments, the
district court reasoned that it is the “actual number and the
percentage of females participating in athletics,” not “the
number of teams offered to girls,” that is “the ultimate issue”
when evaluating participation opportunities. Id. After
finding that Plaintiffs had met their burden on each prong of
the relevant Title IX compliance test, the district court
determined that Sweetwater “failed to fully and effectively
accommodate female athletes and potential female athletes”
at Castle Park, and that it was “not in compliance with Title
IX based on unequal participation opportunities in [the]
athletic program.” Id. at 1275; see Neal v. Bd. of Trs. of Cal.
8 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
State Univs., 198 F.3d 763, 767–68 (9th Cir. 1999) (laying
out the three-prong test for determining whether a school has
provided equal opportunities to male and female students).
B
Before trial, the district court decided three other matters
at issue in this appeal. First, it granted Plaintiffs’ motion to
exclude the testimony of two Sweetwater experts because
(1) the experts’ conclusions and opinions “fail[ed] to meet the
standard of Federal Rule of Evidence 702” because they were
based on “personal opinions and speculation rather than on a
systematic assessment of [the] athletic facilities and
programs” at Castle Park, and (2) the experts’ methodology
was “not at all clear.”
Second, it granted Plaintiffs’ motion to exclude 38 of
Sweetwater’s witnesses because they were not timely
disclosed, reasoning that “[w]aiting until long after the close
of discovery and on the eve of trial to disclose allegedly
relevant and non-cumulative witnesses is harmful and without
substantial justification.” Because Sweetwater “offered no
justification for [its] failure to comply with” Federal Rule of
Civil Procedure 26(a) and (e), the district court concluded that
exclusion of the 38 untimely disclosed witnesses was “an
appropriate sanction” under Federal Rule of Civil Procedure
37(c)(1).
Third, it considered Sweetwater’s motion to strike
Plaintiffs’ Title IX retaliation claim as if it were a Federal
Rule of Civil Procedure 12(b)(6) motion to dismiss that
claim, and denied it on the merits. See Ollier v. Sweetwater
Union High Sch. Dist., 735 F. Supp. 2d 1222 (S.D. Cal.
2010). In so doing, the district court determined that
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 9
Plaintiffs had standing to bring their Title IX retaliation
claim—a claim the court viewed as premised on harm to the
class, not harm to the softball coach whose firing Plaintiffs
alleged was retaliatory. See id. at 1226 (“Plaintiffs . . . have
set forth actions taken against the plaintiff class members
after they complained of sex discrimination that are concrete
and particularized.”). The district court also concluded that
Plaintiffs’ retaliation claim was not moot after finding that
class members were still suffering the effects of Sweetwater’s
retaliatory conduct and that Sweetwater’s actions had caused
a “chilling effect on students who would complain about
continuing gender inequality in athletic programs at the
school.” Id. at 1225.
C
After a 10-day bench trial, the district court granted
Plaintiffs declaratory and injunctive relief on their Title IX
claims alleging (1) unequal treatment of and benefits to
female athletes at Castle Park, and (2) retaliation. See Ollier
v. Sweetwater Union High Sch. Dist., 858 F. Supp. 2d 1093(S.D. Cal. 2012).
The district court concluded that Sweetwater violated
Title IX by failing to provide equal treatment and benefits in
nine different areas, including recruiting, training, equipment,
scheduling, and fundraising. Id. at 1098–1108, 1115. Among
other things, the district court found that female athletes at
Castle Park were supervised by overworked coaches,
provided with inferior competition and practice facilities, and
received less publicity than male athletes. Id. at 1099–1104,
1107. The district court found that female athletes received
unequal treatment and benefits as a result of “systemic
administrative failures” at Castle Park, and that Sweetwater
10 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
failed to implement “policies or procedures designed to cure
the myriad areas of general noncompliance with Title IX.”
Id. at 1108.
The district court also ruled that Sweetwater violated Title
IX when it retaliated against Plaintiffs by firing the Castle
Park softball coach, Chris Martinez, after the father of two of
the named plaintiffs complained to school administrators
about “inequalities for girls in the school’s athletic
programs.” Id. at 1108; see id. at 1115. The district court
found that Coach Martinez was fired six weeks after the
Castle Park athletic director told him he could be fired at any
time for any reason—a comment the coach understood to be
a threat that he would be fired “if additional complaints were
made about the girls’ softball facilities.” Id. at 1108.
Borrowing from “Title VII cases to define Title IX’s
applicable legal standards,” the district court concluded
(1) that Plaintiffs engaged in protected activity when they
complained to Sweetwater about Title IX violations and when
they filed their complaint; (2) that Plaintiffs suffered adverse
actions—such as the firing of their softball coach, his
replacement by a less experienced coach, cancellation of the
team’s annual awards banquet in 2007, and being unable to
participate in a Las Vegas tournament attended by college
recruiters—that caused their “long-term and successful
softball program” to be “significantly disrupted”; and (3) that
a causal link between their protected conduct and
Sweetwater’s retaliatory actions could “be established by an
inference derived from circumstantial evidence”—in this
case, “temporal proximity.” Id. at 1113–14. Finally, the
district court rejected Sweetwater’s non-retaliatory reasons
for firing Coach Martinez, concluding that they were “not
credible and are pretextual.” Id. at 1114. The district court
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 11
determined that Sweetwater’s suggested non-retaliatory
justifications were post hoc rationalizations for its decision to
fire Coach Martinez—a decision the district court said was
impermissibly retaliatory. See id.D
Sweetwater timely appealed the district court’s decisions
(1) to grant partial summary judgment to Plaintiffs on their
Title IX unequal participation claim; (2) to grant Plaintiffs’
motions to exclude expert testimony and 38 untimely
disclosed witnesses; (3) to deny Sweetwater’s motion to
strike Plaintiffs’ Title IX retaliation claim; and (4) to grant a
permanent injunction to Plaintiffs on their Title IX claims,
including those alleging (a) unequal treatment of and benefits
to female athletes at Castle Park, and (b) retaliation.4
II
We review de novo a district court’s grant of a motion for
summary judgment to determine whether, viewing the
evidence in the light most favorable to the nonmoving party,
there exists a genuine dispute as to any material fact and
whether the district court correctly applied the substantive
law. See Fed. R. Civ. P. 56(a); Cameron v. Craig, 713 F.3d
1012, 1018 (9th Cir. 2013).
4
Sweetwater also gave notice of its intent to appeal the district court’s
decision to certify the Plaintiffs’ proposed class. However, neither of
Sweetwater’s briefs on appeal includes argument on the district court’s
decision to grant class certification. Sweetwater’s appeal on that issue is
waived. See Hall, 697 F.3d at 1071.
12 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
Title IX of the Education Amendments of 1972 states that
“[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program
or activity receiving Federal financial assistance.” 20 U.S.C.
§ 1681(a). Title IX’s implementing regulations require that
schools provide “equal athletic opportunity for members of
both sexes.” 34 C.F.R. § 106.41(c). Among the factors we
consider to determine whether equal opportunities are
available to male and female athletes is “[w]hether the
selection of sports and levels of competition effectively
accommodate the interests and abilities of members of both
sexes.” Id. § 106.41(c)(1). In 1979, the Office of Civil
Rights of the Department of Health, Education, and
Welfare—the precursor to today’s Department of Health &
Human Services and Department of Education—published a
“Policy Interpretation” of Title IX setting a three-part test to
determine whether an institution is complying with the
“effective accommodation” requirement:
(1) Whether . . . participation opportunities for
male and female students are provided in
numbers substantially proportionate to their
respective enrollments; or
(2) Where the members of one sex have been
and are underrepresented among . . . athletes,
whether the institution can show a history and
continuing practice of program expansion
which is demonstrably responsive to the
developing interest and abilities of the
members of that sex; or
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 13
(3) Where the members of one sex are
underrepresented among . . . athletes, and the
institution cannot show a continuing practice
of program expansion such as that cited
above, whether it can be demonstrated that the
interests and abilities of the members of that
sex have been fully and effectively
accommodated by the present program.
See 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979). We have
adopted this three-part test, which by its terms provides that
an athletics program complies with Title IX if it satisfies any
one of the above conditions. See Neal, 198 F.3d at 767–68.5
A
Sweetwater contends that the district court erred in
granting summary judgment to Plaintiffs on their Title IX
unequal participation claim because (1) there is “overall
proportionality between the sexes” in athletics at Castle Park;
(2) Castle Park “expanded the number of athletic teams for
female participation over a 10-year period”; (3) “the trend
over 10 years showed increased female participation in
sports” at Castle Park; and (4) Castle Park “accommodated
express female interest” in state-sanctioned varsity sports.
Relatedly, Sweetwater argues that there was insufficient
interest among female students to sustain viable teams in field
hockey, water polo, or tennis.
5
We give deference to the Department of Education’s guidance
according to Chevron USA v. Natural Resources Defense Council,
467 U.S. 837, 843–44 (1984). See Mansourian v. Regents of Univ. of
Cal., 602 F.3d 957, 965 n.9 (9th Cir. 2010).
14 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
Plaintiffs, on the other hand, contend that (1) the number
of female athletes at Castle Park has consistently lagged
behind overall female enrollment at the school—that is, the
two figures are not “substantially proportionate”; (2) the
number of teams on which girls could theoretically participate
is irrelevant under Title IX, which considers only the number
of female athletes; and (3) “girls’ interest and ability were not
slaked by existing programs.”
The United States as amicus curiae sides with Plaintiffs
and urges us to affirm the district court’s award of summary
judgment. The Government says that the district court
“properly analyzed” Castle Park’s athletic program under the
three-part “effective accommodation” test, and that it
correctly concluded that Sweetwater “failed to provide
nondiscriminatory athletic participation opportunities to
female students” at Castle Park. The Government’s position
rejects Sweetwater’s argument that Title IX should be applied
differently to high schools than to colleges, as well as the idea
that the district court’s “substantial proportionality”
evaluation was flawed.6 We agree with the Government that
the three-part test applies to a high school. This is suggested
by the Government’s regulations, See 34 C.F.R. § 106.41(a)
(disallowing sex discrimination “in any interscholastic,
intercollegiate, club or intramural athletics”), and,
accordingly, apply the three-part “effective accommodation”
test here. Although this regulation does not explicitly refer to
high schools, it does not distinguish between high schools and
6
On appeal, Sweetwater propounds a new theory that, with respect to
the first prong of the “effective accommodation” test, “the idea of
proportionality relies on percentages, rather than absolute numbers.” The
Government calls this theory, which has no precedential support, “flatly
incorrect.”
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 15
other types of interscholastic, club or intramural athletics.
We give Chevron deference to this regulation. See note 5,
supra. See also McCormick ex rel. McCormick v. School
Dist. of Mamaroneck, 370 F.3d 275, 300 (2d Cir. 2004)
(applying three-part test to high school districts); Horner v.
Ky. High Sch. Athletic Ass’n, 43 F.3d 265, 272–75 (6th Cir.
1994) (same).
B
In 1996, the Department of Education clarified that our
analysis under the first prong of the Title IX “effective
accommodation” test—that is, our analysis of whether
“participation opportunities for male and female students are
provided in numbers substantially proportionate to their
respective enrollments,” 44 Fed. Reg. at 71,418—“begins
with a determination of the number of participation
opportunities afforded to male and female athletes.” Office
of Civil Rights, U.S. Dep’t of Educ., Clarification of
Intercollegiate Athletics Policy Guidance: The Three-Part
Test (Jan. 16, 1996) (“1996 Clarification”). In making this
determination, we count only “actual athletes,” not “unfilled
slots,” because Title IX participation opportunities are “real,
not illusory.” Letter from Norma V. Cantú, Assistant Sec’y
for Civil Rights, Office of Civil Rights, U.S. Dep’t of Educ.,
to Colleagues (Jan. 16, 1996) (“1996 Letter”).
The second step of our analysis under the first prong of
the three-prong test is to consider whether the number of
participation opportunities—i.e., athletes—is substantially
proportionate to each sex’s enrollment. See 1996
Clarification; see also Biediger v. Quinnipiac Univ., 691 F.3d
85, 94 (2d Cir. 2012). Exact proportionality is not required,
and there is no “magic number at which substantial
16 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
proportionality is achieved.” Equity in Athletics, Inc. v. Dep’t
of Educ., 639 F.3d 91, 110 (4th Cir. 2011); see also 1996
Clarification. Rather, “substantial proportionality is
determined on a case-by-case basis in light of ‘the
institution’s specific circumstances and the size of its athletic
program.’” Biediger, 691 F.3d at 94 (quoting 1996
Clarification).7 As a general rule, there is substantial
proportionality “if the number of additional participants . . .
required for exact proportionality ‘would not be sufficient to
sustain a viable team.’” Id. (quoting 1996 Clarification).
Between 1998 and 2008, female enrollment at Castle Park
ranged from a low of 975 (in the 2007–2008 school year) to
a high of 1133 (2001–2002). Male enrollment ranged from
1128 (2000–2001) to 1292 (2004–2005). Female athletes
ranged from 144 (1999–2000 and 2003–2004) to 198
(2002–2003), while male athletes ranged from 221
(2005–2006) to 343 (2004–2005). Perhaps more helpfully
stated, girls made up 45.4–49.6 percent of the student body at
Castle Park but only 33.4–40.8 percent of the athletes from
1998 to 2008. At no point in that ten-year span was the
disparity between the percentage of female athletes and the
percentage of female students less than 6.7 percent. It was
less than 10 percent in only three years, and at least 13
percent in five years. In the three years at issue in this
7
An institution that sought to explain a disparity from substantial
proportionality should show how its specific circumstances justifiably
explain the reasons for the disparity as being beyond its control.
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 17
lawsuit, the disparities were 6.7 percent (2005–2006), 10.3
percent (2006–2007), and 6.7 percent (2007–2008).8
There is no question that exact proportionality is lacking
at Castle Park. Sweetwater concedes as much. Whether there
is substantial proportionality, however, requires us to look
beyond the raw numbers to “the institution’s specific
circumstances and the size of its athletic program.” 1996
Clarification. Instructive on this point is the Department of
Education’s guidance that substantial proportionality
generally requires that “the number of additional participants
. . . required for exact proportionality” be insufficient “to
sustain a viable team.” Biediger, 691 F.3d at 94 (internal
quotation marks omitted).
At Castle Park, the 6.7 percent disparity in the 2007–2008
school year was equivalent to 47 girls who would have played
sports if participation were exactly proportional to enrollment
and no fewer boys participated.9 As the district court noted,
47 girls can sustain at least one viable competitive team.10
Defendants failed to raise more than a conclusory assertion
8
That there are “more athletic sports teams for girls (23) than . . . for
boys (21)” at Castle Park is not controlling. We agree with Plaintiffs that
counting “sham girls’ teams,” like multiple levels of football and
wrestling, despite limited participation by girls in those sports, is “both
misleading and inaccurate.” It is the number of female athletes that
matters. After all, Title IX “participation opportunities must be real, not
illusory.” 1996 Letter.
9
In 2005–2006 (6.7 percent; 48 girls) and 2006–2007 (10.3 percent; 92
girls), the disparity was even greater.
10
The Department of Education says only that a 62-woman gap would
likely preclude a finding of substantial proportionality, but that a six-
woman gap would likely not. 1996 Clarification.
18 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
that the specific circumstances at Castle Park explained the
6.7% disparity between female participation opportunities
and female enrollment, or that Castle Park could not support
a viable competitive team drawn from the 47 girls. As a
matter of law, then, we conclude that female athletic
participation and overall female enrollment were not
“substantially proportionate” at Castle Park at the relevant
times.
C
Participation need not be substantially proportionate to
enrollment, however, if Sweetwater can show “a history and
continuing practice of program expansion which is
demonstrably responsive to the developing interest and
abilities of” female athletes. 44 Fed. Reg. at 71,418; see also
Neal, 198 F.3d at 767–68. This second prong of the Title IX
“effective accommodation” test “looks at an institution’s past
and continuing remedial efforts to provide nondiscriminatory
participation opportunities through program expansion.”
1996 Clarification. The Department of Education’s 1996
guidance is helpful: “There are no fixed intervals of time
within which an institution must have added participation
opportunities. Neither is a particular number of sports
dispositive. Rather, the focus is on whether the program
expansion was responsive to developing interests and abilities
of” female students. Id. The guidance also makes clear that
an institution must do more than show a history of program
expansion; it “must demonstrate a continuing (i.e., present)
practice of program expansion as warranted by developing
interests and abilities.” Id.Sweetwater contends that Castle Park has increased the
number of teams on which girls can play in the last decade,
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 19
showing evidence of the kind “history and continuing practice
of program expansion” sufficient to overcome a lack of
“substantial proportionality” between female athletic
participation and overall female enrollment. But
Sweetwater’s methodology is flawed, and its argument misses
the point of Title IX. The number of teams on which girls
could theoretically participate is not controlling under Title
IX, which focuses on the number of female athletes. See
Mansourian, 602 F.3d at 969 (“The [Prong] Two analysis
focuses primarily . . . on increasing the number of women’s
athletic opportunities rather than increasing the number of
women’s teams.”).
The number of female athletes at Castle Park has varied
since 1998, but there were more girls playing sports in the
1998–1999 school year (156) than in the 2007–2008 school
year (149). The four most recent years for which we have
data show that a graph of female athletic participation at
Castle Park over time looks nothing like the upward trend line
that Title IX requires. The number of female athletes shrank
from 172 in the 2004–2005 school year to 146 in 2005–2006,
before growing to 174 in 2006–2007 and shrinking again to
149 in 2007–2008. As Plaintiffs suggest, these “dramatic ups
and downs” are far from the kind of “steady march forward”
that an institution must show to demonstrate Title IX
compliance under the second prong of the three-part test. We
conclude that there is no “history and continuing practice of
program expansion” for women’s sports at Castle Park.
D
Female athletic participation is not substantially
proportionate to overall female enrollment at Castle Park.
And there is no history or continuing practice of program
20 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
expansion for women’s sports at the school. And yet,
Sweetwater can still satisfy Title IX if it proves “that the
interests and abilities of” female students “have been fully
and effectively accommodated by the present program.”
44 Fed. Reg. at 71,418; see also Neal, 198 F.3d at 767–68.
This, the third prong of the Title IX “effective
accommodation” test, considers whether a gender imbalance
in athletics is the product of impermissible discrimination or
merely of the genders’ varying levels of interest in sports.
See 1996 Clarification. Stated another way, a school where
fewer girls than boys play sports does not violate Title IX if
the imbalance is the result of girls’ lack of interest in
athletics.
The Department of Education’s 1996 guidance is again
instructive: In evaluating compliance under the third prong,
we must consider whether there is (1) “unmet interest in a
particular sport”; (2) ability to support a team in that sport;
and (3) a “reasonable expectation of competition for the
team.” Id. Sweetwater would be Title IX-compliant unless
all three conditions are present. See id. Finally, if an
“institution has recently eliminated a viable team,” we
presume “that there is sufficient interest, ability, and available
competition to sustain” a team in that sport absent strong
evidence that conditions have changed. Id.; see also Cohen
v. Brown Univ., 101 F.3d 155, 180 (1st Cir. 1996).
Sweetwater contends that (1) Plaintiffs were required to,
but did not, conduct official surveys of female students at
Castle Park to gauge unmet interest; (2) field hockey is
irrelevant for Title IX purposes because it is not approved by
the California Interscholastic Federation (“CIF”); and (3) in
any event, field hockey was eliminated only because interest
in the sport waned.
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 21
Sweetwater’s arguments are either factually wrong or
without legal support. First, Title IX plaintiffs need not
themselves gauge interest in any particular sport. It is the
school district that should evaluate student interest
“periodically” to “identify in a timely and responsive manner
any developing interests and abilities of the underrepresented
sex.” 1996 Clarification. Second, field hockey is a CIF-
approved sport.11 But even if it were not, Sweetwater’s
position is foreclosed by Title IX’s implementing regulations,
which state that compliance “is not obviated or alleviated by
any rule or regulation of any organization, club, athletic or
other league, or association.” 34 C.F.R. § 106.6(c); see also
Biediger, 691 F.3d at 93–94 (noting that we are to determine
whether a particular “activity qualifies as a sport by reference
to several factors relating to ‘program structure and
administration’ and ‘team preparation and competition’”
(quoting Letter from Stephanie Monroe, Assistant Sec’y for
Civil Rights, Office of Civil Rights, U.S. Dep’t of Educ., to
Colleagues (Sept. 17, 2008))). Third, the record makes clear
that Castle Park cut its field hockey team not because interest
in the sport waned, but because it was unable to find a coach.
And the school’s inability to hire a coach does not indicate
lack of student interest in the sport.
Castle Park offered field hockey from 2001 through 2005,
during which time the team ranged in size from 16 to 25 girls.
It cut the sport before the 2005–2006 school year before
offering it again in 2006–2007. It then cut field hockey a
second time before the 2007–2008 school year. The
Department of Education’s guidance is clear on this point: “If
11
See Field Hockey, Cal. Interscholastic Fed’n,
http://www.cifstate.org/index.php/other-approved-sports/field-hockey (last
visited July 28, 2014).
22 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
an institution has recently eliminated a viable team . . . , there
is sufficient interest, ability, and available competition to
sustain a[] . . . team in that sport unless an institution can
provide strong evidence that interest, ability, or available
competition no longer exists.” 1996 Clarification; see also
Cohen, 101 F.3d at 180. Castle Park’s decision to cut field
hockey twice during the relevant time period, coupled with its
inability to show that its motivations were legitimate, is
enough to show sufficient interest, ability, and available
competition to sustain a field hockey team.
E
We conclude that Sweetwater has not fully and effectively
accommodated the interests and abilities of its female
athletes. The district court did not err in its award of
summary judgment to Plaintiffs on their Title IX unequal
participation claim, and we affirm the grant of injunctive
relief to Plaintiffs on that issue.
III
We review a district court’s evidentiary rulings, such as
its decisions to exclude expert testimony and to impose
discovery sanctions, for an abuse of discretion, and a showing
of prejudice is required for reversal. See Estate of Barabin v.
AstenJohnson, Inc., 740 F.3d 457, 462 (9th Cir. 2014) (en
banc); see also United States v. Chao Fan Xu, 706 F.3d 965,
984 (9th Cir. 2013) (exclusion of expert testimony); R & R
Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1245 (9th Cir.
2012) (imposition of discovery sanctions for Rule 26(a) and
(e) violations).
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 23
In non-jury cases such as this one, “the district judge is
given great latitude in the admission or exclusion of
evidence.” Hollinger v. United States, 651 F.2d 636, 640 (9th
Cir. 1981). The Supreme Court has said that district courts
have “broad latitude” to determine whether expert testimony
is sufficiently reliable to be admitted. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 153 (1999). And “we give
particularly wide latitude to the district court’s discretion to
issue sanctions under Rule 37(c)(1),” which is “a recognized
broadening of the sanctioning power.” Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001);
see also R & R Sails, 673 F.3d at 1245 (same); Jeff D. v.
Otter, 643 F.3d 278, 289 (9th Cir. 2011) (“[A] district court
has wide discretion in controlling discovery.”) (alteration in
original) (internal quotation marks omitted).
A
We first address the exclusion of defense experts. Federal
Rule of Evidence 702 governs the admissibility of expert
testimony. It provides that a witness “qualified as an expert
by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if”:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of
fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts
or data;
(c) the testimony is the product of reliable
principles and methods; and
24 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
(d) the expert has reliably applied the
principles and methods to the facts of the
case.
Fed. R. Evid. 702.
“It is well settled that bare qualifications alone cannot
establish the admissibility of . . . expert testimony.” United
States v. Hermanek, 289 F.3d 1076, 1093 (9th Cir. 2002).
Rather, we have interpreted Rule 702 to require that “[e]xpert
testimony . . . be both relevant and reliable.” Estate of
Barabin, 740 F.3d at 463 (alteration and ellipsis in original)
(internal quotation marks omitted). A proposed expert’s
testimony, then, must “have a reliable basis in the knowledge
and experience of his discipline.” Kumho Tire, 526 U.S. at
148 (internal quotation marks omitted). This requires district
courts, acting in a “gatekeeping role,” to assess “whether the
reasoning or methodology underlying the testimony” is valid
and “whether that reasoning or methodology properly can be
applied to the facts in issue.” Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 592–93, 597 (1993) (“Daubert
I”). It is not “the correctness of the expert’s conclusions” that
matters, but “the soundness of his methodology.” Estate of
Barabin, 740 F.3d at 463 (internal quotation marks omitted).
The district court excluded the proposed testimony of
Peter Schiff—a retired superintendent of a different school
district who would have testified about “the finances of
schools and high school athletic programs, as well as
equitable access to school facilities at Castle Park,”—because
it could not “discern what, if any, method he employed in
arriving at his opinions.” The district court also found that
Schiff’s “conclusions appear to be based on his personal
opinions and speculation rather than on a systematic
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 25
assessment of . . . athletic facilities and programs at [Castle
Park].” Further, the district court called Schiff’s site visits
“superficial,” and noted that “experience with the non-
relevant issue of school finance” did not qualify him “to
opine on Title IX compliance.”
Similarly, the district court excluded the proposed
testimony of Penny Parker—an assistant principal at a
different high school who would have testified about the
“unique nature of high school softball and its role at Castle
Park,”—because her “methodology is not at all clear” and
“her opinions are speculative . . . inherently unreliable and
unsupported by the facts.”
We assume without deciding that (1) Schiff and Parker’s
proposed testimony was relevant, and (2) Schiff and Parker
were qualified as Title IX experts under Rule 702.
Nonetheless, we conclude that the district court did not abuse
its discretion when it struck both experts’ proposed
testimony. The record suggests that the district court’s
determination that Schiff and Parker’s proposed testimony
was based on, at best, an unreliable methodology, was not
illogical or implausible.
Schiff did not visit Castle Park to conduct an in-person
investigation until after he submitted his initial report on the
case. And when he did visit, his visit was cursory and not in-
season: Schiff only walked the softball and baseball fields.
His opinion that the “girls’ softball field was in excellent
shape,” then, was based on no more than a superficial visual
examination of the softball and baseball fields. Schiff—who
Sweetwater contends is qualified “to assess the state of the
athletic facilities for both boys and girls teams” at Castle Park
because of his “experience on the business side of athletics,”
26 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
his “extensive[]” work with CIF, and his high school baseball
coaching tenure—did not enter the softball or baseball
dugouts (or batting cages), and yet he sought to testify “on the
renovations to the softball field, including new fencing,
bleachers, and dugout areas.”
Parker’s only visit to Castle Park lasted barely an hour.
And that visit was as cursory as Schiff’s: Parker—a former
softball coach who Sweetwater offered as an expert on “all
aspects of the game of softball,”—“toured the Castle Park
facilities,” including the softball and baseball fields and boys
and girls locker rooms, and “was present while both a
baseball and a softball game were being played
simultaneously.” She “observed the playing surfaces, dugout
areas, field condition, fencing, bleachers, and amenities,” but
only from afar. Like Schiff, Parker took no photographs and
no measurements. She did not speak to anyone at Castle Park
about the fields. And she admitted that her proposed
testimony about the softball team’s allegedly inferior
fundraising and accounting practices was speculative.
Schiff and Parker based their proposed testimony on
superficial inspections of the Castle Park facilities. Even if
a visual walkthrough, without more, could be enough in some
cases to render expert testimony admissible under Rule 702,
it certainly does not compel that conclusion in all cases.
Moreover, as the district court found, Schiff and Parker’s
conclusions were based on their “personal opinions and
speculation rather than on a systematic assessment of [Castle
Park’s] athletic facilities and programs.” But personal
opinion testimony is inadmissible as a matter of law under
Rule 702, see Daubert v. Merrell Dow Pharm., Inc., 43 F.3d
1311, 1319 (9th Cir. 1995)(“Daubert II”), and speculative
testimony is inherently unreliable, see Diviero v. Uniroyal
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 27
Goodrich Tire Co., 114 F.3d 851, 853 (9th Cir. 1997); see
also Daubert I, 509 U.S. at 590 (noting that expert testimony
based on mere “subjective belief or unsupported speculation”
is inadmissible). We cannot say the district court abused its
discretion when it barred Schiff and Parker from testifying at
trial after finding their testimony to be “inherently unreliable
and unsupported by the facts.” The district court properly
exercised its “gatekeeping role” under Daubert I, 509 U.S. at
597.
B
We next address the exclusion of fact witnesses. The
general issue is whether witnesses not listed in Rule 26(a)
disclosures—and who were identified 15 months after the
discovery cutoff and only ten months before trial—were
identified too late in the process.
The Federal Rules of Civil Procedure require parties to
provide to other parties “the name . . . of each individual
likely to have discoverable information—along with the
subjects of that information—that the disclosing party may
use to support its claims or defenses.” Fed. R. Civ. P.
26(a)(1)(A)(i). And “[a] party who has made a disclosure
under Rule 26(a) . . . must supplement or correct its
disclosure” in a “timely manner if the party learns that in
some material respect the disclosure . . . is incomplete or
incorrect, and if the additional or corrective information has
not otherwise been made known to the other parties during
the discovery process or in writing.” Id. R. 26(e). A party
that does not timely identify a witness under Rule 26 may not
use that witness to supply evidence at a trial “unless the
failure was substantially justified or is harmless.” Id. R.
37(c)(1); see also Yeti by Molly, 259 F.3d at 1105. Indeed,
28 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
Rule 37(c)(1) is “intended to put teeth into the mandatory . . .
disclosure requirements” of Rule 26(a) and (e). 8B Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2289.1 (3d ed. 2014).
The district court excluded 38 Sweetwater witnesses as
untimely disclosed, in violation of Rule 26(a) and (e), in part
because it found “no reason why any of the 38 witnesses were
not disclosed to [P]laintiffs either initially or by timely
supplementation.” The district court concluded that “the
mere mention of a name in a deposition is insufficient” to
notify Plaintiffs that Sweetwater “intend[s] to present that
person at trial,” and that to “suggest otherwise flies in the
face of the requirements of Rule 26.” And the district court
reasoned that “[w]aiting until long after the close of discovery
and on the eve of trial to disclose allegedly relevant and non-
cumulative witnesses is harmful and without substantial
justification.”
A “district court has wide discretion in controlling
discovery.” Jeff D., 643 F.3d at 289 (internal quotation marks
omitted). And, as we noted earlier, that discretion is
“particularly wide” when it comes to excluding witnesses
under Rule 37(c)(1). Yeti by Molly, 259 F.3d at 1106.
Sweetwater argues that exclusion of 30 of its 38 witnesses
was an abuse of discretion because (1) “Plaintiffs were made
aware” of those witnesses during discovery—specifically,
during Plaintiffs’ depositions of other Sweetwater witnesses,
and (2) any violation of Rule 26 “was harmless to Plaintiffs.”
Of the remaining eight witnesses, Sweetwater contends that
untimely disclosure was both justified because those
witnesses were not employed at Castle Park before the
discovery cutoff date, and harmless because they were
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 29
disclosed more than eight months before trial. We conclude
that the district court did not abuse its discretion by imposing
a discovery sanction. The record amply supports the district
court’s discretionary determination that Sweetwater’s lapse
was not justified or harmless.
Initial Rule 26(a) disclosures were due October 29, 2007.
At least 12 of Sweetwater’s 38 contested witnesses were
Castle Park employees by that date. The discovery cutoff
was August 8, 2008, and lay witness depositions had to be
completed by September 30, 2008. At least 19 of the 38
witnesses were Castle Park employees by those dates. And
yet, Sweetwater did not disclose any of the 38 witnesses until
November 23, 2009, more than 15 months after the close of
discovery and less than a year before trial.
Sweetwater does not dispute that it did not formally offer
the names of any of the 38 witnesses by the October 29, 2007,
deadline for initial Rule 26(a) disclosures (or by the August
8, 2008, discovery cutoff, for that matter). Nor does it
dispute that it did not “supplement or correct its disclosure or
response,” see Fed. R. Civ. P. 26(a)(1), by offering the
witnesses’ names in accord with Rule 26(e). Instead,
Sweetwater contends that because other disclosed witnesses
had mentioned the contested witnesses at their depositions,
Plaintiffs were on notice that the contested witnesses might
testify and were not prejudiced by untimely disclosure.
Sweetwater contends, in essence, that it complied with Rule
26 because Plaintiffs knew of the contested witnesses’
existence.
The district court did not abuse its discretion by rejecting
Sweetwater’s argument. The theory of disclosure under the
Federal Rules of Civil Procedure is to encourage parties to try
30 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
cases on the merits, not by surprise, and not by ambush.
After disclosures of witnesses are made, a party can conduct
discovery of what those witnesses would say on relevant
issues, which in turn informs the party’s judgment about
which witnesses it may want to call at trial, either to
controvert testimony or to put it in context. Orderly
procedure requires timely disclosure so that trial efforts are
enhanced and efficient, and the trial process is improved. The
late disclosure of witnesses throws a wrench into the
machinery of trial. A party might be able to scramble to
make up for the delay, but last-minute discovery may disrupt
other plans. And if the discovery cutoff has passed, the party
cannot conduct discovery without a court order permitting
extension. This in turn threatens whether a scheduled trial
date is viable. And it impairs the ability of every trial court
to manage its docket.
With these considerations in mind, we return to the
governing rules. Rule 26 states that “a party must, without
awaiting a discovery request, provide to the other parties . . .
the name and, if known, the address and telephone number of
each individual likely to have discoverable information.”
Fed. R. Civ. P. 26(a)(1)(A) (emphasis added). Compliance
with Rule 26’s disclosure requirements is “mandatory.”
Repulic of Ecuador v. Mackay, 742 F.3d 860, 865 (9th Cir.
2014).
The rule places the disclosure obligation on a “party.”
That another witness has made a passing reference in a
deposition to a person with knowledge or responsibilities who
could conceivably be a witness does not satisfy a party’s
disclosure obligations. An adverse party should not have to
guess which undisclosed witnesses may be called to testify.
We—and the Advisory Committee on the Federal Rules of
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 31
Civil Procedure—have warned litigants not to “‘indulge in
gamesmanship with respect to the disclosure obligations’” of
Rule 26. Marchand v. Mercy Med. Ctr., 22 F.3d 933, 936 n.3
(9th Cir. 1994) (quoting Fed. R. Civ. P. 26 advisory
committee’s note (1993 amend.)). The record shows that the
district court did not abuse its discretion when it concluded
that Sweetwater’s attempt to obfuscate the meaning of Rule
26(a) was just this sort of gamesmanship. There was no error
in the district court’s conclusion that “the mere mention of a
name in a deposition is insufficient to give notice to”
Plaintiffs that Sweetwater “intend[ed] to present that person
at trial.”
The district court did not abuse its discretion when it
concluded that Sweetwater’s failure to comply with Rule 26’s
disclosure requirement was neither substantially justified nor
harmless. See Fed. R. Civ. P. 37(c)(1). Sweetwater does not
argue that its untimely disclosure of these 30 witnesses was
substantially justified. Nor was it harmless. Had
Sweetwater’s witnesses been allowed to testify at trial,
Plaintiffs would have had to depose them—or at least to
consider which witnesses were worth deposing—and to
prepare to question them at trial. See Yeti by Molly, 259 F.3d
at 1107. The record demonstrates that the district court’s
conclusion, that reopening discovery before trial would have
burdened Plaintiffs and disrupted the court’s and the parties’
schedules, was well within its discretion. The last thing a
party or its counsel wants in a hotly contested lawsuit is to
make last-minute preparations and decisions on the run. The
late disclosures here were not harmless. See Hoffman v.
Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir.
2008).
32 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
Nor did the district court abuse its discretion by finding
that the untimely disclosure of the eight remaining witnesses
also was not harmless. Allowing these witnesses to testify
and reopening discovery would have had the same costly and
disruptive effects. Nor was it substantially justified merely
because the eight witnesses were not employed at Castle Park
until after the discovery cutoff date. Sanctioning this
argument would force us to read the supplementation
requirement out of Rule 26(e). We will not do that.
Sweetwater did not comply with the disclosure
requirements of Rule 26(a) and (e). That failure was neither
substantially justified nor harmless. The district court did not
abuse its discretion when it excluded Sweetwater’s 38
untimely disclosed witnesses from testifying at trial.
C
The next issue concerns whether the district court abused
its discretion by declining to consider contemporaneous
evidence at trial. On April 26, 2010, the district court set a
June 15, 2010, cutoff date for Sweetwater to provide evidence
of “continuous repairs and renovations of athletic facilities at
Castle Park” for consideration at trial. Improvements made
after June 15, 2010, but before the start of trial on September
14, 2010, the district court explained, would not be
considered. Sweetwater did not then object to the district
court’s decision.
On appeal, however, Sweetwater argues that injunctive
relief should be based on contemporaneous evidence, not on
evidence of past harm. And if the district court had
considered contemporaneous evidence at trial, Sweetwater
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 33
speculates, it would have found Castle Park in compliance
with Title IX and would not have issued an injunction.
This argument fails for several reasons. First, a “trial
court’s power to control the conduct of trial is broad.” United
States v. Panza, 612 F.2d 432, 438 (9th Cir. 1979).
Establishing a cutoff date after which it would not consider
supplemental improvements to facilities at Castle
Park—especially one that was only 90 days before
trial—aided orderly pre-trial procedure and was well within
the district court’s discretion.
Second, the district court did consider some of
Sweetwater’s remedial improvements, “particularly with
respect to the girls’ softball facility,” but concluded that
“those steps have not been consistent, adequate or
comprehensive” and that “many violations of Title IX have
not been remedied or even addressed.” Sweetwater’s
contention that “the District Court appeared to ignore key
evidence of changed facilities” is unpersuasive.
Third, even if contemporaneous evidence showed that
Sweetwater was complying with Title IX at the time of trial,
the district court still could have issued an injunction based
on past harm. See United States v. Mass. Mar. Acad.,
762 F.2d 142, 157–58 (1st Cir. 1985). The plaintiff class
included future students, who were protected by the
injunction. “Voluntary cessation” of wrongful conduct “does
not moot a case or controversy unless subsequent events
ma[ke] it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” Parents
Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 719 (2007) (alteration in original) (internal quotation
marks omitted).
34 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
Fourth, the district court found no evidence that
Sweetwater had “addressed or implemented policies or
procedures designed to cure the myriad areas of general
noncompliance with Title IX.” In light of the systemic
problem of gender inequity in the Castle Park athletics
program, the district court did not abuse its discretion by
issuing an injunction requiring Sweetwater to comply with
Title IX.
IV
We review de novo a district court’s decision to deny a
Rule 12(b)(6) motion to dismiss.12 See Dunn v. Castro,
621 F.3d 1196, 1198 (9th Cir. 2010). Similarly, whether a
party has standing to bring a claim is a question of law that
we review de novo. See Jewel v. Nat’l Sec. Agency, 673 F.3d
902, 907 (9th Cir. 2011). But we review a district court’s
fact-finding on standing questions for clear error. See In re
ATM Fee Antitrust Litig., 686 F.3d 741, 747 (9th Cir. 2012).
Article III of the Constitution requires a party to have
standing to bring its suit. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). The elements of standing are well-
established: the party must have suffered (1) an “injury in
fact—an invasion of a legally protected interest which is
(a) concrete and particularized; and (b) actual or imminent,
not conjectural or hypothetical”; (2) “there must be a causal
connection between the injury and the conduct complained
of,” meaning the injury has to be “fairly traceable to the
challenged action of the defendant”; and (3) “it must be
12
Because the district court construed Sweetwater’s motion to strike
Plaintiffs’ Title IX retaliation claim as a Rule 12(b)(6) motion to dismiss
that claim, see Ollier, 735 F. Supp. 2d at 1224, we do the same.
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 35
likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” Id. at 560–61
(alteration, ellipsis, citations, and internal quotation marks
omitted).13 “In a class action, standing is satisfied if at least
one named plaintiff meets the requirements.” Bates v. United
Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en
banc).
The district court held that Plaintiffs had standing to bring
their Title IX retaliation claim, but gave few reasons for its
decision. See Ollier, 735 F. Supp. 2d at 1226. On appeal,
Sweetwater argues, as it did before the district court, that
Plaintiffs lack standing to enjoin the retaliatory action
allegedly taken against Coach Martinez because students may
not “recover for adverse retaliatory employment actions taken
against” an educator, even if that educator “engaged in
protected activity on behalf of the students.” Sweetwater
contends that while Coach Martinez would have had standing
to bring a Title IX retaliation claim himself, the “third party”
students cannot “maintain a valid cause of action for
retaliation under Title IX for their coach’s protected activity
and the adverse employment action taken against the coach.”
We reject this argument. It misunderstands Plaintiffs’
claim, which asserts that Sweetwater impermissibly retaliated
against them by firing Coach Martinez in response to Title IX
13
Sweetwater does not contest that Plaintiffs’ alleged harm is “fairly
traceable” to them. Sweetwater’s argument against redressability is
premised on the idea that prospective injunctive relief cannot redress past
harm. Because Plaintiffs’ harm is ongoing, that argument fails. See
McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d
275, 284–85 (2d Cir. 2004); see also N. Haven Bd. of Educ. v. Bell,
456 U.S. 512, 553 n.15 (1982) (Powell, J., dissenting). Only Plaintiffs’
alleged injury in fact, then, is at issue in our analysis.
36 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
complaints he made on Plaintiffs’ behalf. With their softball
coach fired, Plaintiffs’ prospects for competing were
hampered. Stated another way, Plaintiffs’ Title IX retaliation
claim seeks to vindicate not Coach Martinez’s rights, but
Plaintiffs’ own rights. Because Plaintiffs were asserting their
own “legal rights and interests,” not a claim of their coach,
the generally strict limitations on third-party standing do not
bar their claim. See Warth v. Seldin, 422 U.S. 490, 499
(1975).
Justice O’Connor correctly said that “teachers and
coaches . . . are often in the best position to vindicate the
rights of their students because they are better able to identify
discrimination and bring it to the attention of administrators.
Indeed, sometimes adult employees are the only effective
adversaries of discrimination in schools.” Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 181 (2005)
(alteration and internal quotation marks omitted).
Sweetwater’s position—that Plaintiffs lack standing because
it was not they who made the Title IX complaints—would
allow any school facing a Title IX retaliation suit brought by
students who did not themselves make Title IX complaints to
insulate itself simply by firing (or otherwise silencing) those
who made the Title IX complaints on the students’ behalf.
We will “not assume that Congress left such a gap” in Title
IX’s enforcement scheme. Id.An injured party may sue under the Administrative
Procedure Act, 5 U.S.C. § 551 et seq., if he “falls within the
‘zone of interests’ sought to be protected by the statutory
provision whose violation forms the legal basis for his
complaint.” Thompson v. N. Am. Stainless, LP, 131 S. Ct.
863, 870 (2011) (internal quotation marks omitted).
Plaintiffs, of course, do not bring their suit under the APA,
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 37
but the Supreme Court has extended its “zone of interests”
jurisprudence to cases brought under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., whose anti-
retaliation provisions are analogous here. See Thompson,
131 S. Ct. at 870. And students like Plaintiffs surely fall
within the “zone of interests” that Title IX’s implicit anti-
retaliation provisions seek to protect. See Jackson, 544 U.S.
at 173–77.
Finally, the Supreme Court has foreclosed Sweetwater’s
position. Faced with the argument that anti-retaliation
provisions limit standing to those “who engaged in the
protected activity” and were “the subject of unlawful
retaliation,” the Court has said that such a position is an
“artificially narrow” reading with “no basis in text or prior
practice.” Thompson, 131 S. Ct. at 869-70.14 Rather, “any
plaintiff with an interest arguably sought to be protected by”
a statute with an anti-retaliation provision has standing to sue
under that statute. Id. at 870 (alteration and internal quotation
marks omitted). Students have “an interest arguably sought
to be protected by” Title IX—indeed, students are the
statute’s very focus.
Coach Martinez gave softball players extra practice time
and individualized attention, persuaded volunteer coaches to
help with specialized skills, and arranged for the team to play
in tournaments attended by college recruiters. The softball
team was stronger with Coach Martinez than without him.
After Coach Martinez was fired, Sweetwater stripped the
softball team of its voluntary assistant coaches, canceled the
team’s 2007 awards banquet, and forbade the team from
14
Thompson v. North American Stainless, LP was a Title VII case, but
the Supreme Court’s reasoning applies with equal force to Title IX.
38 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
participating in a Las Vegas tournament attended by college
recruiters. The district court found these injuries, among
others, sufficient to confer standing on Plaintiffs. We agree.
Plaintiffs have alleged judicially cognizable injuries
flowing from Sweetwater’s retaliatory responses to Title IX
complaints made by their parents and Coach Martinez. The
district court’s ruling that Plaintiffs have Article III standing
to bring their Title IX retaliation claim and its decision to
deny Sweetwater’s motion to strike that claim were not error.
V
We review a district court’s decision to grant a permanent
injunction for an abuse of discretion, but we review for clear
error the factual findings underpinning the award of
injunctive relief, see Momot v. Mastro, 652 F.3d 982, 986
(9th Cir. 2011), just as we review for clear error a district
court’s findings of fact after bench trial. See Spokane Arcade,
Inc. v. City of Spokane, 75 F.3d 663, 665 (9th Cir. 1996).
However, we review de novo “the rulings of law relied upon
by the district court in awarding injunctive relief.” Sierra
Forest Legacy v. Sherman, 646 F.3d 1161, 1177 (9th Cir.
2011) (internal quotation marks omitted).
We come to the substance of Plaintiffs’ retaliation claim,
an important part of this case. “Title IX’s private right of
action encompasses suits for retaliation, because retaliation
falls within the statute’s prohibition of intentional
discrimination on the basis of sex. . . . Indeed, if retaliation
were not prohibited, Title IX’s enforcement scheme would
unravel.” Jackson, 544 U.S. at 178, 180. The Supreme Court
“has often looked to its Title VII interpretations . . . in
illuminating Title IX,” so we apply to Title IX retaliation
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 39
claims “the familiar framework used to decide retaliation
claims under Title VII.” Emeldi v. Univ. of Or., 698 F.3d
715, 724–25 (9th Cir. 2012), cert. denied, 133 S. Ct. 1997(2013) (internal quotation marks omitted).
Under that framework, 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.”
Id. at 724. The burden on a plaintiff to show a prima facie
case of retaliation is low. Only “a minimal threshold showing
of retaliation” is required. Id. After a plaintiff has made this
showing, the burden shifts to the defendant to “articulate a
legitimate, non-retaliatory reason for the challenged action.”
Id. If the defendant can do so, the burden shifts back to the
plaintiff to show that the reason is pretextual. See id.A
The district court found that Plaintiffs had made out a
prima facie case of retaliation: They engaged in protected
activity when they complained about Title IX violations in
May and July 2006 and when they filed their complaint in
April 2007. They suffered adverse action because the softball
program was “significantly disrupted” when, among other
things, Coach Martinez was fired and replaced by a “far less
experienced coach.” And a causal link between Plaintiffs’
protected conduct and the adverse actions they suffered “may
be established by an inference derived from circumstantial
evidence”—in this case, the “temporal proximity” between
Plaintiffs’ engaging in protected activity in May 2006, July
2006, and April 2007, and the adverse actions taken against
them in July 2006 and spring 2007.
40 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
Sweetwater contends that these findings were clearly
erroneous because (1) “At most, the named plaintiffs who
attended CPHS at the time of the complaints can legitimately
state they engaged in protected activity”; (2) the district court
did not articulate the standard it used to determine which
actions were “adverse” and did not, as Sweetwater says was
required, evaluate whether Plaintiffs “were denied access to
the educational opportunities or benefits provided by the
school as a direct result of retaliation”; and (3) there was no
causal link between protected activity and adverse action
because Coach Martinez was fired to make way for a
certified, on-site teacher, not because of any Title IX
complaints.
“In the Title IX context, speaking out against sex
discrimination . . . is protected activity.” Id. at 725 (alteration
and internal quotation marks omitted). Indeed, “Title IX
empowers a woman student to complain, without fear of
retaliation, that the educational establishment treats women
unequally.” Id. That is precisely what happened here. The
father of two of the named plaintiffs complained to the Castle
Park athletic director in May 2006 about Title IX violations;
Plaintiffs’ counsel sent Sweetwater a demand letter in July
2006 regarding Title IX violations at Castle Park; and
Plaintiffs filed their class action complaint in April 2007.
These are indisputably protected activities under Title IX, and
the district court’s finding to that effect was not clearly
erroneous.
It is not a viable argument for Sweetwater to urge that a
class may not “sue a school district for retaliation in a Title
IX athletics case.” As we have previously held: “The
existence of a private right of action to enforce Title IX is
well-established.” Mansourian v. Regents of Univ. of
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 41
California, 602 F.3d 957, 964 n.6 (9th Cir. 2010). Further, a
private right of action under Title IX includes a claim for
retaliation. As the United States Supreme Court has said:
“Title IX’s private right of action encompasses suits for
retaliation, because retaliation falls within the statute’s
prohibition of intentional discrimination on the basis of
sex. . . . Indeed, if retaliation were not prohibited, Title IX’s
enforcement scheme would unravel.” Jackson, 544 U.S. at
178, 180. Nor is it a viable argument for Sweetwater to
complain that only some members of the plaintiff’s class
who attended CPHS when complaints were made can urge
they engaged in protected activity. That the class includes
students who were not members of the softball team at the
time of retaliation, and who benefit from the relief, does not
impair the validity of the relief. See Thompson v. N. Am.
Stainless, LP, 562 U.S. 170, 131 S. Ct. 863, 870, 178 L. Ed.
2d 694 (2011) (holding that Title VII “enabl[es] suit by any
plaintiff with an interest arguably sought to be protected.”)
(internal quotations and alteration omitted); Mansourian,
602 F.3d at 962 (approving a class of female wrestlers “on
behalf of all current and future female” university students).
The relief of injunction is equitable, and the district court had
broad powers to tailor equitable relief so as to vindicate the
rights of former and future students. See generally Dobbs on
Remedies, §§ 2.4, 2.9.
Under Title IX, as under Title VII, “the adverse action
element is present when ‘a reasonable [person] would have
found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable
[person] from making or supporting a charge of
discrimination.’” Id. at 726 (alterations in original) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006)). Sweetwater does not argue—because it cannot
42 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
argue—that the district court’s adverse action findings do not
satisfy this standard.15 The district court found that Plaintiffs’
“successful softball program was significantly disrupted to
the detriment of the program and participants” because:
(1) Coach Martinez was fired and replaced by a “far less
experienced coach”; (2) the team was stripped of its assistant
coaches; (3) the team’s annual award banquet was canceled
in 2007; (4) parents were prohibited from volunteering with
the team; and (5) the team was not allowed to participate in
a Las Vegas tournament attended by college recruiters. It
was not clear error for the district court to conclude that a
reasonable person could have found any of these actions
“materially adverse” such that they “well might have
dissuaded [him] from making or supporting a charge of
discrimination.” Id. (internal quotation marks omitted).
We construe the causal link element of the retaliation
framework “broadly”; a plaintiff “merely has to prove that the
protected activity and the [adverse] action are not completely
unrelated.” Id. (internal quotation marks omitted). In Title
VII cases, causation “may be inferred from circumstantial
evidence, such as the [defendant’s] knowledge that the
plaintiff engaged in protected activities and the proximity in
time between the protected action and the allegedly
retaliatory” conduct. Yartzoff v. Thomas, 809 F.2d 1371,
1376 (9th Cir. 1987). Emeldi extended that rule to Title IX
cases. See 698 F.3d at 726 (“[T]he proximity in time
15
Rather, Sweetwater contends that the district court applied the wrong
standard and that Plaintiffs, to show adverse action, must prove “that they
were denied access to the educational opportunities or benefits provided
by the school as a direct result of retaliation.” Our decision in Emeldi v.
University of Oregon, however, illustrates that Sweetwater’s position is
simply not the law.
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 43
between” protected activity and allegedly retaliatory action
can be “strong circumstantial evidence of causation.”).
Plaintiffs have met their burden: They engaged in protected
activity in May 2006, July 2006, and April 2007. Coach
Martinez was fired in July 2006 and the annual awards
banquet was canceled in Spring 2007. The timing of these
events is enough in context to show causation in this Title IX
retaliation case. That the district court found as much was not
clearly erroneous. Plaintiffs state a prima facie case of Title
IX retaliation.
B
Sweetwater offered the district court four legitimate, non-
retaliatory reasons for firing Coach Martinez: First, Castle
Park wanted to replace its walk-on coaches with certified
teachers. Second, Coach Martinez mistakenly played an
ineligible student in 2005 and forced the softball team to
forfeit games as a result. Third, he allowed an unauthorized
parent to coach a summer softball team. Fourth, he filed late
paperwork related to the softball team’s participation in a Las
Vegas tournament—a mishap that Sweetwater said created an
unnecessary liability risk. The district court rejected each
reason, concluding that all four were “not credible and are
pretextual.”
Sweetwater argues on appeal that the district court
committed clear error by disregarding these legitimate, non-
retaliatory reasons because it “failed to evaluate and weigh
the evidence before it” when it “looked past the abundance of
uncontradicted information preexisting the Title IX
complaints . . . and focused almost entirely” on Coach
Martinez’s termination. Sweetwater also adds that Castle
Park did not renew Coach Martinez’s contract in part because
44 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
“he was a mean and intimidating person” who often spoke in
a “rough voice” and could be “abrasive.” Coach Martinez,
Sweetwater contends, “did not possess the guiding principles
required of a coach because he constantly failed to follow the
rules” at Castle Park.
Sweetwater disregards the salient fact that the district
court held a trial on retaliation. The district court could
permissibly find that, on the evidence it considered,
Sweetwater’s non-retaliatory reasons for firing Coach
Martinez were a pretext for unlawful retaliatory conduct.
First, Sweetwater contends that Castle Park fired Coach
Martinez “primarily” because he allowed an unauthorized
parent to coach a summer league team, but also that this
incident merely “played a role” in his firing, and that the
reason given Martinez when he was fired was that Castle Park
“wanted an on-site coach.” These shifting, inconsistent
reasons for Coach Martinez’s termination are themselves
evidence of pretext. See Hernandez v. Hughes Missile Sys.
Co., 362 F.3d 564, 569 (9th Cir. 2004) (“From the fact that
Raytheon has provided conflicting explanations of its
conduct, a jury could reasonably conclude that its most recent
explanation was pretextual.”).
Second, the district court’s findings underlying its
conclusion that Sweetwater’s “stated reasons for Martinez’s
termination are not credible and are pretextual” are
convincing and not clearly erroneous. Coach Martinez was
not fired as part of a coordinated campaign to replace walk-on
coaches with certified teachers, as Sweetwater contends.
There was a preference for certified teachers in place long
before Coach Martinez was hired, and there was no certified
teacher ready to replace him after he was fired. Nor was the
district court required by the evidence to find that Coach
OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 45
Martinez was fired because he played an ineligible student
and forced the softball team to forfeit games as a result. This
incident occurred during the 2004–2005 school year, but
Coach Martinez was not reprimanded at the time and was not
fired until more than a year later. Also, eligibility
determinations were the responsibility of school
administrators, not athletics coaches.
Sweetwater’s argument that it fired Coach Martinez
because he let an unauthorized parent coach a summer
softball team is specious. Not only was Coach Martinez
absent when the incident occurred, but he forbade the parent
from coaching after learning of his ineligibility to do so.
Moreover, the summer softball team in question “was not
conducted under the auspices of the high school.” Finally,
while Coach Martinez did file late paperwork for the Las
Vegas tournament, he was not then admonished for it. As
with the ineligible player incident, the timing of his
termination suggests that Sweetwater’s allegedly non-
retaliatory reason is merely a post hoc rationalization for what
was actually an unlawful retaliatory firing. See Gaffney v.
Riverboat Servs. of Ind., Inc., 451 F.3d 424, 452 (7th Cir.
2006) (concluding that a district court’s finding that
“defendants first fired the plaintiffs and then came up with
post hoc rationalizations for having done so” was not clearly
erroneous).
On the record before it, the district court correctly could
find that Coach Martinez was fired in retaliation for
Plaintiffs’ Title IX complaints, not for any of the pretextual,
non-retaliatory reasons that Sweetwater has offered.
46 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.
C
Having determined that the district court did not clearly
err when it found (1) that Plaintiffs established a prima facie
case of Title IX retaliation, and (2) that Sweetwater’s
purported non-retaliatory reasons for firing Coach Martinez
were pretextual excuses for unlawful retaliation, we conclude
that it was not an abuse of discretion for the district court to
grant permanent injunctive relief to Plaintiffs on their Title IX
retaliation claim. We affirm the grant of injunctive relief to
Plaintiffs on that issue.16
VI
We reject Sweetwater’s attempt to relitigate the merits of
its case. Title IX levels the playing fields for female athletes.
In implementing this important principle, the district court
committed no error.
AFFIRMED.
16
We also affirm the grant of injunctive relief to Plaintiffs on their Title
IX unequal treatment and benefits claim, any objection to which
Sweetwater waived on appeal by not arguing it. See Hall, 697 F.3d at
1071.