# Rollins v. McMinnville School District 040

> District Court, D. Oregon · November 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10394058

## Case

- **Court:** District Court, D. Oregon
- **Decided:** November 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10394058

## How later opinions describe it (automated extraction)

- holding that retaliation against a physical education teacher for complaining about discrimination against disabled students violated the teacher’s First Amendment rights
- holding that a municipality is a “person” subject to liability under § 1983 when it causes a constitutional tort through “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers”
- holding that a decision to not renew a nontenured public school teacher’s one-year contract “could not be made in retaliation for his exercise of the constitutional right to free speech”

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TY ROLLINS; PARKER ROLLINS; A.R., No. 3:20-cv-00900-HZ
a minor, by her father and next friend, Ty
Rollins; S.B., a minor, by her parents and OPINION & ORDER
next friends, Mathew Bailey and Alana
Bailey,

Plaintiffs,

v.

MCMINNVILLE SCHOOL DISTRICT
040; RYAN MCIRVIN; AMY FAST,

Defendants.

Jennifer J. Middleton
Caitlin V. Mitchell
Johnson Johnson Lucas & Middleton PC
975 Oak Street, Suite 1050
Eugene, OR 97401

Attorneys for Plaintiff
Karen M. Vickers
Beth F. Plass
Vickers Plass LLC
5200 SW Meadows Road, Suite 150
Lake Oswego, OR 97035

Attorneys for Defendant

HERNÁNDEZ, District Judge:
Plaintiffs, a former assistant high school cross-country coach and three student athletes,
bring claims for retaliation under Title IX, claims for retaliation in violation of the First
Amendment under 42 U.S.C. § 1983, and related claims under Oregon statutes and the Oregon
Constitution against McMinnville School District (“MSD”) and the principal and athletic
director of McMinnville High School. Defendants move for summary judgment on all claims.
The Court grants in part and denies in part Defendants’ motion [18].
BACKGROUND
Plaintiff Ty Rollins (“Rollins”), the father of plaintiffs Parker Rollins (“Parker”) and
A.R., was an assistant coach for the McMinnville High School cross-country team from 2016 to
2019. McMinnville High School has one cross-country head coach who oversees both the boys’
and girls’ teams. Rollins served as an assistant to coach the girls’ team, whose members included
Parker and A.R. (“Student Plaintiffs”).1 Rollins Decl. ¶ 2, ECF 24-28. Rollins was also a
volunteer coach over the distance runners for the girls’ track team. Middleton Decl. Ex. 7
(“Downs Dep.”) 26:3-7, ECF 24-7. During the 2018 season, the girls’ cross-country team won
the Pacific Conference championship for the first time in fifteen years, and Rollins was named
Pacific Conference girls’ cross-country coach of the year. Rollins Decl. ¶ 3. At the end of the

1 Plaintiff S.B. ran track at McMinnville High School but never ran as member of the cross-
country team. Supp. Vickers Decl. Ex. 4 (“S.B. Dep. II”) 28:11-12, ECF 32-4.
2018/2019 school year, head cross-country coach Vic Downs retired. Id. at ¶ 5. Rollins did not
apply for the head coach position. Id. at ¶ 6. In the summer of 2019, MSD hired Drew Wasmund
to be the new head coach of the McMinnville cross-country team. Middleton Decl. Ex. 1
(“McIrvin Dep I”) 66:6-10, ECF 24-1. Wasmund had previously been a coach at Wilsonville
High School. Vickers Decl. Ex. 2 (“McIrvin Dep. II”) 64:8-18, ECF 19-2.

At the request of McMinnville High School athletic director Ryan McIrvin, Rollins met
with Wasmund shortly after he was hired. After that meeting, through a google search, Rollins
discovered two 2016 college newspaper articles that mentioned a romantic relationship between
Wasmund, who was 27 years old at the time, and a 19-year-old female student athlete he had
coached at Clackamas Community College. Rollins Decl. ¶ 6; Pl. Ex. 15. Clackamas Community
College did not renew Wasmund’s coaching contract in 2016 because of that relationship.
McIrvin Dep. I 79:17-20.
On July 2, 2019, Rollins showed McIrvin the two articles and told him he was concerned
about Wasmund coaching girls at McMinnville High School. Rollins Decl. ¶ 7. During that

meeting, Rollins also discussed what he perceived to be existing inequities between the girls’ and
boys’ cross-country programs. Id. Rollins said that the girls’ cross-country team had not received
enough coaching attention from the previous head coach, which he was concerned would
continue under Wasmund. McIrvin Dep. I 73:2-19. Rollins then turned in his ID badge and
resigned, stating that he would not coach alongside a head coach who had “crossed the line by
dating an athlete.” Middleton Decl. Ex. 3 (“Rollins Dep. I”) 51:21-25, ECF 24-3. After the
meeting, Rollins sent a follow-up email to McIrvin and McMinnville High School principal Amy
Fast that expressed the same concerns. Pl. Ex. 13; Vickers Decl. Ex. 1 (“Rollins Dep. II”) 79:3-5,
ECF 19-1.
On July 11, McIrvin and Principal Fast met with cross-country team parents to discuss
the hiring of Wasmund. McIrvin Dep. I 93:13-17. At that time, neither McIrvin nor Fast
expressed an intention to reverse the decision to hire Wasmund. Middleton Decl. Ex. 2 (“Fast
Dep. I”) 71:20-72:4, ECF 24-2. Rollins was not at that meeting, but McIrvin told the cross-
country team members and their parents that he hoped Rollins would return as assistant coach. In

McIrvin’s words, he “spent the entire month trying to keep [Rollins] in the program.” McIrvin
Dep. I 130:23-24.
During the summer of 2019, new coach Wasmund held workouts with the cross-country
team. Some girls attended the workouts regularly, but others did not, because they “did not feel
safe with [Wasmund].” Parker Decl. ¶ 4. Parker Rollins attended one workout but did not go
back. Id. S.B. attended three or four workouts until she found out about Wasmund’s prior
relationship with a student athlete. Middleton Decl. Ex. 5 (“S.B. Dep. I”) 39:10-25. Five
members of the girls’ team worked out with Rollins instead. Vickers Decl. Ex. 7 (“Hanna Dep.
I”) 39:3-8, ECF 32-7.

Rollins met with McIrvin and Principal Fast again on July 17 to further discuss his
concerns about the hiring of Wasmund. Rollins Decl. ¶8. On July 18, McIrvin and Fast met with
Parker, A.R., S.B., and few other girls on the cross-country team. Parker Decl. ¶ 5. The student
athletes told McIrvin and Fast that they did not feel safe with Wasmund as their coach because of
his previous sexual relationship with an athlete he coached. Id.; Fast Dep. I 82:3-6. The students
also complained about inequities between the girls’ and boys’ cross-country programs, including
differences in the amount of money spent on each program and differences in the gear they
received. McIrvin Dep. I 105:14-23; Fast Dep. I 82:3-23.
On July 21, Rollins met with Wasmund and McIrvin. Although Rollins continued to
express concerns about Wasmund and MSD’s treatment of the girls’ cross-country program,
McIrvin was “very optimistic . . . that [Rollins] was going to coach with [Wasmund].” McIrvin
Dep. I 110: 16-18. On July 27, Rollins hosted a meeting of team parents to discuss the new head
coach and the upcoming season. Pl. Ex. 20, ECF 24-20. After the meeting, one parent circulated

a publication called “Staying in Bounds: An NCAA Model Policy to Prevent Inappropriate
Relationships Between Student-Athletes and Athletics Department Personnel.” Pl. Ex. 21, ECF
24-21. The document describes the NCAA’s policy that any sexual relationship between a coach
and an athlete is considered “sexual abuse,” regardless of the athlete’s age and whether the
relationship is consensual. Id. at 5-7. Rollins then texted the parent group, stating that he would
“be contacting the superintendent and school board” and that he “strongly recommended” the
other parents do the same. Pl. Ex. 20. On the text exchanges, some parents agreed with
contacting the superintendent, school board, and the local newspaper. Id. Other parents did not
agree. Id. Rollins texted Wasmund and told him about the parents’ conversation. Pl. Ex. 30, ECF

24-20. Wasmund asked that the parents not talk to the media about his past relationship and
offered to resign from the head coach position. Id. Rollins also emailed McIrvin, explaining the
outcome of the parent meeting and his communication with Wasmund. Pl. Ex. 22, ECF 24-22.
McIrvin replied that he “[did] not support the method and/or potential actions taken by the group
of parents seeking [Wasmund’s] removal.” Id.
On or about August 7, 2019, after Wasmund had resigned, McIrvin and Fast told Rollins
that he would not coach cross-country at McMinnville High School again. Rollins Dep. 77:3-7;
78:6-9. McIrvin was specifically concerned about Rollins “going to the media . . . and using that
threat as a way to . . . get [Wasmund] to resign.” McIrvin Dep. I 112: 5-7.
On August 10, McMinnville announced to team parents by email that Wasmund had
resigned, and that Josh Hanna had been hired as interim cross-country head coach. Pl. Ex. 23,
ECF 24-23. On August 12, Rollins emailed McIrvin his resume and expressed his interest in
being rehired as assistant coach for the girls’ team. Pl. Ex. 24, ECF 24-24. McIrvin responded
that he and Fast “[did] not believe [Rollins] being a part of the coaching staff this year is the

right fit.” Id. McIrvin asserts that his decision to not hire Rollins was because he was trying to
put a coaching staff together that would “create unity” in the cross-country program. McIrvin
Dep. II 137:18-23. McIrvin notes that some parents had told him that they supported the hiring of
Wasmund and were not in favor of his resignation. Id. at 124:5-15. One parent said her daughter
had not had a “great experience” with Rollins in the past. Id. at 124:10-12; 137:14-17.
McIrvin then hired Taylor Ford as a half-time assistant for the cross-country team.
McIrvin Dep. I 141:2-20; Middleton Decl. Ex. 8 (“Ford Dep.”) 8:22, ECF 24-8. Ford was a
recent college graduate who had previously run cross-country at McMinnville High School and
in college, but she had never coached before. McIrvin Dep. I 141:5-7; Ford Dep. 8:6-7. Ford was

not specifically told that she was hired to coach the girls’ team. Ford Dep. 8:8-9. She came to
practices three days per week, at which time she would run with the girls and time their
workouts. Id. at 9:1-22. Ford states that she did not do a lot of coaching and that her role was
mostly to encourage the girls and support them at cross-country meets. Id. at 11:14-15; 14:8-9.
During the 2019 season, Parker and other members of the girls’ team met twice with
Principal Fast to express concerns about Hanna’s coaching style and the lack of coaching they
were receiving. Vickers Decl. Ex. 3 (“Fast Dep. II”) 132:6-11, ECF 19-3. The girls complained
that they were not being pushed hard enough. Id. at 132:24-133:1. Parker complained that
Assistant Coach Ford did not do much coaching and that Head Coach Hanna did not spend time
specifically with the girls’ team. Middleton Decl. Ex. 4 (“Parker Dep.”) 58:3-20, ECF 24-4.
Hanna later explained that his strategy had been to reduce the girls’ workouts as a way to prevent
injury to the top runners. Middleton Decl. Ex. 10 (“Hanna Dep. II) 37:18-21, ECF 24-10. Hanna
set a goal for the girls to win second place in the conference instead trying to repeat as
conference champions. Vickers Decl. Ex. 4 (“Hanna Dep. III) 38:10-15, ECF 19-4. He explained

that the lack of depth on the team and the amount of training it would take to repeat as
conference champions would risk injury. Id. at 37:24-38:3.
Before the summer of 2019, along with coaching the girls’ cross-country team, Rollins
had volunteered in various ways with athletics in the McMinnville school system. He worked
with students in the weight room during a high school physical education teacher’s strength and
conditioning class. Middleton Decl. 11 (“Houston Dep.) 12:19-24, ECF 24-11. In the fall of
2019, McIrvin told the physical education teacher that Rollins could not volunteer with the class.
Id. at 22:4-13. Rollins had also volunteered as a youth wrestling coach and was asked by other
coaches to work with the middle school wrestling team. Middleton Decl. Ex. 6 (“Barich Dep.”)

14:5-13. During the fall of 2019, Rollins was asked to leave a middle school wrestling practice
because he did not have the necessary paperwork on file to volunteer. Id. at 19:13-23. Even after
completing the paperwork, Rollins was still not allowed to volunteer with the wrestling team.
Rollins Decl. ¶ 24. In addition, the new coach for the track team, Jennifer Gubrud, declined
Rollins’s request to volunteer as distance coach as he had in the past. Pl. Ex. 27. Though she was
never specifically told she could not take Rollins as a volunteer, Gubrud “got the impression”
from Fast and McIrvin that “it might not be a good idea.” Middleton Decl. Ex. 9 (“Gubrud
Dep.”) 24:20-21.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28
(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the
light most favorable to the nonmoving party. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108,
1112 (9th Cir. 2011). If the factual context makes the nonmoving party’s claim as to the
existence of a material issue of fact implausible, that party must come forward with more
persuasive evidence to support its claim than would otherwise be necessary. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“Summary judgment is improper where divergent ultimate inferences may reasonably be
drawn from the undisputed facts.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d
1119, 1125 (9th Cir. 2014) (internal quotation marks omitted); see also Int’l Union of
Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d
1401, 1405 (9th Cir. 1985) (“Even where the basic facts are stipulated, if the parties dispute what
inferences should be drawn from them, summary judgment is improper.”).
DISCUSSION

Plaintiffs bring five claims for relief: (1) retaliation in violation of Title IX against MSD;
(2) claims under 42 U.S.C. § 1983 for First Amendment violations against MSD, Principal Fast,
and Athletic Director McIrvin; (3) retaliation in violation of Or. Rev. Stat. (‘O.R.S.”) 659.852
against MSD; (4) violation of O.R.S. 659A.203 for retaliation against whistleblowing by a public
employee against MSD; and (5) violation of the free speech guarantee of Article I, section 8 of
the Oregon Constitution against MSD. Defendants move for summary judgment on all claims.
I. Title IX Retaliation
Title IX of the Education Amendments of 1972 prohibits discrimination “on the basis of
sex” by education institutions that receive federal funding. 20 U.S.C. § 1681(a). Title IX implies

a private right of action against educational institutions that intentionally discriminate. Cannon v.
Univ. of Chicago, 441 U.S. 677, 717 (1979). The Supreme Court has recognized a cause of
action when an institution retaliates against a person who complains of sex discrimination. See
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005) (“[W]hen a funding recipient
retaliates against a person because he complains of sex discrimination, this constitutes intentional
discrimination on the basis of sex, in violation of Title IX.”) (internal quotation marks omitted).
Retaliation claims extend to those who speak out against the discrimination of others. See id. at
179 (“The statute . . . does not require that the victim of the retaliation must also be the victim of
the discrimination that is the subject of the original complaint.”).
For Plaintiffs to succeed on the merits of their Title IX claim for retaliation, they must
first make out a prima facie case by showing (1) they engaged in a protected activity; (2) they
suffered an adverse action; and (3) there was a causal link between the two. Emeldi v. Univ. of
Oregon, 698 F.3d 715, 724 (9th Cir. 2012). The burden on plaintiffs to make this showing is low.
Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 867 (9th Cir. 2014); see also Emeldi,

698 F.3d at 724 (“[T]o make out a prima facie case, a plaintiff need only make a minimal
threshold showing of retaliation.”). If a plaintiff makes this showing, the burden shifts to the
defendant to provide a legitimate, non-retaliatory reason for the action it took. Ollier, 768 F.3d at
867. If the defendant provides a legitimate reason, “the burden shifts back to the plaintiff to show
that the reason is pretextual.” Id.
A. Plaintiffs’ Prima Facie Case
1. Protected Activity
To engage in protected activity that forms the basis for a Title IX retaliation claim,
plaintiffs must show they complained about “sex discrimination.” Jackson, 544 U.S. at 173.
Plaintiff Rollins and Student Plaintiffs allege that MSD retaliated against them because they
complained both about the hiring of Wasmund and about gender inequities in the cross-country

program. Along with a claim for retaliation because of their own actions, Student Plaintiffs can
bring a claim for Title IX retaliation based on Plaintiff Rollins’s protected conduct. See T.L. ex
rel. Lowry v. Sherwood Charter School, 68 F. Supp. 3d 1295, 1314-15 (D. Or. 2014) (holding
that a student can bring a Title IX claim for retaliation directed at her based on the protected
complaint made by her parent because she is within the “zone of interests that Title IX’s implicit
antiretaliation provisions seek to protect.”). Although Defendants dispute that inequities in the
cross-country program exist, they concede “that plaintiffs Ty Rollins and Parker Rollins engaged
in protected activity when they complained about perceived inequities in the cross-country
program.”2 Def. Mot. 7, ECF 18.
Defendants dispute that Plaintiffs speaking out against MSD’s hiring of Wasmund is
protected activity. Plaintiffs claim that their acts of protest against Wasmund are protected under
Title IX for two reasons: (1) if a similar sexual relationship had occurred between a coach and

student athlete at McMinnville High School, the coach would have violated school district
policy; and (2) deliberate indifference to reports of past sexual misconduct that create a
heightened risk of sexual harassment or abuse can form the basis for a Title IX claim. See
Karasek v. Regents of Univ. of California, 956 F.3d 1093, 1112 (9th Cir. 2020).
Plaintiffs’ first reason is unavailing. Wasmund did not engage in a sexual relationship
with a high school student—his relationship was with a consenting 19-year-old college student.
MSD policy about relationships between coaches and students is not relevant to Wasmund’s past
relationship at Clackamas Community College.3 Nothing about MSD’s policy suggests that
complaining about Wasmund’s past relationship constitutes complaining about gender

discrimination at McMinnville High School.
Second, Plaintiffs’ reliance on Karasek is misplaced. In Karasek, the Ninth Circuit
recognized a “pre-assault claim” as a cognizable theory of Title IX liability. Id. A pre-assault
claim requires the plaintiff to show facts that “(1) a school maintained a policy of deliberate

2 Defendants also acknowledge that whether actual inequities exist between the girls’ and boys’
cross-country programs is irrelevant “because plaintiffs make title IX retaliation claims, not Title
IX equal treatment claims.” Def. Mot. 7 n.6.
3 Plaintiffs place great emphasis on a National Collegiate Athletic Association (“NCAA”) model
policy statement that describes any relationship between coaches and players as sexual abuse.
DEBORAH L. BRAKE & MARIAH B. NELSON, STAYING BOUNDS: AN NCAA MODEL POLICY TO
PREVENT INAPPROPRIATE RELATIONSHIPS BETWEEN STUDENT-ATHLETES AND ATHLETICS
DEPARTMENT PERSONNEL 5, Pl. Ex. 21. But Clackamas Community College athletics are
governed by the National Junior College Athletic Association rather than the NCAA.
indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual
harassment that was known or obvious (3) in a context subject to the school’s control, and (4) as
a result, the plaintiff suffered harassment[.]” Id.
Because Plaintiffs bring Title IX retaliation claims rather than equal treatment claims,
they need not show that they suffered from harassment or abuse. But Plaintiffs must present

some facts to support an inference that MSD’s decision to hire Wasmund “created a heightened
risk of sexual harassment that was known or obvious.” Plaintiffs present no facts indicating that
Wasmund’s prior consensual relationship with a 19-year-old college student, even if it could be
considered sexual abuse, created a heightened risk of sexual harassment or abuse to students at
McMinnville High School. Student Plaintiffs’ description of feeling uncomfortable running
under Wasmund does not support an inference that Wasmund would engage in any conduct that
violates Title IX. Neither Parker nor A.R. report that they received or observed other student
athletes receiving unwanted attention from Wasmund. Plaintiffs provide no reports of Wasmund
engaging in sexual harassment or abuse during the two-year period he coached at another high

school after he left Clackamas Community College. Thus, MSD cannot be considered
deliberately indifferent to a heightened risk of sexual harassment or abuse, and Plaintiff’s
complaints about the hiring of Wasmund do not constitute protected activity under Title IX. For
the purposes of their Title IX retaliation claims, Plaintiff’s only engaged in protected activity to
the extent that they complained to McIrvin and Fast about existing gender inequities in the
McMinnville High School cross-country program.
2. Adverse Actions
Defendants argue that even if Plaintiffs engaged in protected activity, they suffered no
adverse actions. Rollins asserts that the adverse actions against him were (1) not being allowed to
work as assistant coach for the cross-country team despite having had great success in previous
years; and (2) being barred from his previous volunteer coaching opportunities. Defendants point
out that Rollins was not fired from his position, but voluntarily resigned. Defendants also assert
that the school district did not prohibit Rollins from volunteering, but only asked him to
complete appropriate paperwork to volunteer. Defendants note that Rollins was still able to

volunteer in some capacity within the school district.
The Ninth Circuit uses a reasonable person standard to determine whether an adverse
action occurred. In other words, the element is met when the challenged action by the defendant
might have dissuaded a reasonable person from speaking out against discrimination. Emeldi, 698
F.3d at 726. Being terminated from a position is not a threshold requirement. In Emeldi, the court
found an adverse action where the university did not dismiss a PhD candidate, but “as a practical
matter, rendered her unable to complete the degree.” Id. In addition, the Ninth Circuit uses the
same criteria for adverse actions under Title IX as it does for employment discrimination claims
under Title VII of the Civil Rights Act of 1964. Id. Title VII recognizes a refusal to hire on the

basis of race, color, religion, sex, or national origin as an adverse act. 42 U.S.C. § 2000e-2(a)(1).
Thus, the relevant question is not whether Rollins was terminated from his coaching
position or prevented from volunteering, but whether a reasonable person would have been afraid
to speak out based on the actions MSD took. Whether a reasonable person in Rollins’ position
would have been deterred from speaking out is a factual dispute that the Court cannot resolve on
a motion for summary judgment.
Student Plaintiffs allege that MSD’s adverse act against them was hiring an unqualified
assistant coach for the girls’ team and not coaching them effectively in retaliation for their
protected conduct.4 Pl. Resp. 16, ECF 23. For student athletes, inadequate coaching and a lack of
individualized attention constitutes an adverse action. Ollier, 768 F.3d at 867. In Ollier, the court
found an adverse action when a successful girls’ softball program was disrupted because their
coach “was fired and replaced by a far less experienced coach,” among other claims. Id.
Student Plaintiffs present evidence that after winning the conference championship the

prior year, they received little attention and substandard coaching during the fall 2019 cross-
country season. Taylor Ford, the newly hired half-time assistant, admits that she did not do a lot
of coaching. Parker Rollins states that she had to take on some of the coaching responsibilities
and “had to help [Ford] understand what she needed to be doing and what a coach would do.”
Parker Decl. ¶ 6. Student Plaintiffs also claim that the new head coach, Josh Hanna, “did not
spend time specifically with the girls’ team” and “worked almost exclusively with the boys.” Id.
MSD’s decision to hire an inexperienced assistant coach, by itself, is not enough to be
considered an adverse action against Student Plaintiffs. But Student Plaintiffs present facts
showing they also received less attention and less training from the new head coach, particularly

in comparison to the attention given to the boys’ team. Thus, viewed in the light most favorable
to them, Student Plaintiffs assert enough facts from which a reasonable jury could find an
adverse action on the part of Defendants.
3. Causation
Next, for a prima facie Title IX retaliation claim, Plaintiffs must show a causal link
between their protected activity and Defendants’ adverse acts against them. The causal
connection element is construed broadly. Plaintiffs must only show that the protected activity

4 Plaintiff S.B. cannot make this claim because she was not a member of the cross-country team
during the relevant time period.
and adverse action “are not completely unrelated.” Emeldi, 698 F.3d at 726 (internal quotation
marks and citation omitted). The proximity of time between the complaint of discrimination and
the alleged retaliatory act is strong circumstantial evidence of causation. Id.; see Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (noting that timing alone can satisfy
the causation element in an employment discrimination case).

As to Plaintiff Rollins, viewing the facts in the light most favorable to Plaintiffs,
causation can be inferred from a temporal relation between Rollins’s protected activity and
Defendants’ alleged adverse action. Prior to Rollins’s meeting with team parents to discuss the
girls’ cross-country program, McIrvin wanted to retain Rollins as assistant coach. Even after
Rollins turned in his keys and ID badge, McIrvin, “spent the entire month trying to keep
[Rollins] in the program” and get him to return as assistant coach. McIrvin Dep. I 130:23-24. But
when Rollins expressed his intention to contact the superintendent and the school board, McIrvin
changed his stance and refused to rehire Rollins as assistant coach. According to Rollins,
McIrvin told him that he would never coach at McMinnville High School again. Regardless of

whether McIrvin and MSD had other, legitimate reasons to not rehire Rollins, the timing of their
refusal to rehire is sufficient to create a question of fact regarding causation. Construing the facts
in the light most favorable to the non-moving party, Rollins has established a prima facie case of
Title IX retaliation.
For Student Plaintiffs, Defendants allege that their retaliation claims are causally
reversed. Def. Reply 7, ECF 31. Defendants claim that Student Plaintiffs did not like their new
coaches and then complained. Id. But Defendants misstate Plaintiff’s allegations. First, Student
Plaintiffs present evidence of Defendants’ retaliatory acts against them during the fall 2019
cross-country season. Those alleged acts were committed after Student Plaintiffs had met Fast
and McIrvin that July to express their concerns about MSD’s disparate treatment of the girls’
cross-country team. Second, Student Plaintiffs can assert Title IX retaliation based on the
protected activity of their father and former coach, Plaintiff Rollins. See T.L. ex rel. Lowry, 68 F.
Supp. 3d at 1314-15. The adverse acts by MSD against Student Plaintiffs occurred after Rollins
stated he would contact the superintendent and school board about McMinnville High School’s

disparate treatment of the girls’ cross-country team. As with Rollins, the temporal relation
between their complaints about the cross-country program and the adverse acts by MSD provides
sufficient circumstantial evidence of causation. Therefore, Student Plaintiffs have also made out
a prima facie case of Title IX retaliation.
B. Retaliatory or Pretextual Reasons for Adverse Action
Because Rollins can make a prima facie showing of Title IX retaliation, the burden shifts
to Defendants to present a non-retaliatory reason for not rehiring Rollins and preventing him for
volunteering. Defendants present evidence that some student athletes did not like Rollins
coaching style and felt comfortable with Wasmund as coach. Parents were fractured in their

feelings about Wasmund’s forced resignation, and Defendants assert that they wanted a coaching
staff that would unify the cross-country community. Because they legitimately regarded Rollins
as an instigator of Wasmund’s resignation, Defendants have established a legitimate, non-
retaliatory reason for not rehiring Rollins as assistant coach. Defendants also state legitimate
reasons for preventing Rollins from participating in certain volunteer activities, such as not
wanting him to work with athletes during school hours and requiring him to complete
appropriate paperwork. Defendants, in fact, assert that they did not prevent Rollins from
volunteering—they only asked that he “follow the same rules as everyone else.” Def. Mot. 9.
Although Defendants present a legitimate reason for preventing Rollins from coaching
and volunteering, a jury could reasonably conclude that Defendants’ explanations are pretextual.
As with causation, temporal proximity of a plaintiff’s protected activity and a defendant’s
adverse action can inform the pretext analysis. T.L. ex rel. Lowry, 68 F. Supp. 3d at 1313. Based
on the presented facts, Defendants’ attitude towards and treatment of Rollins changed after he

complained of inequities in the cross-country program. A reasonable jury could infer that that
MSD’s stated reason for not rehiring Rollins was pretext and could find that Defendants acted in
retaliation for Rollins complaining about the school district’s disparate treatment of the girls’
cross-country team.
Defendants also present legitimate, non-retaliatory reasons for reducing Student
Plaintiffs’ training and not pushing them to win the conference championship again. Coach
Hanna makes a compelling case for his stated coaching strategy. He wanted to prevent injury to
the top runners on a team that did not have a lot of depth. However, the strategy decisions do not
provide legitimate reasons for paying little attention to the girls’ team. A reasonable jury could

find Hanna’s explanation for reducing the girls’ coaching to be pretextual.
Construing the facts in the light most favorable to Plaintiffs, both Rollins and Student
Plaintiffs have made out prima facie cases of Title IX retaliation, and a reasonable jury could
find that Defendants’ hiring decision as to Rollins and coaching decisions as to Student Plaintiffs
were pretextual. Thus, the Court denies summary judgment for Defendants on Plaintiffs’ Title IX
retaliation claims.
II. Plaintiffs’ § 1983 Claims: First Amendment Retaliation
Defendants McIrvin, Fast, and MSD move for summary judgment on Plaintiffs’ § 1983
claims for retaliation against protected speech in violation of the First Amendment. Plaintiff
Rollins and Student Plaintiffs seek both money damages and injunctive relief against future
“unlawful retaliation because of speech on matters of public concern” by MSD. Compl., Prayer
for Relief (a), (c).
A. Retaliation in Violation of the First Amendment
1. Ty Rollins

The Ninth Circuit analyzes First Amendment retaliation claims in the public employment
setting under the framework established by Pickering v. Bd. of Educ., 391 U.S. 563 (1968).5
Under Pickering, courts evaluate restraints on public speech by balancing “the interests of the
[employee], as a citizen, in commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public services it performs through its
employees.” Oyama v. Univ. of Hawaii, 813 F.3d 850, 860 (9th Cir. 2015) (quoting Pickering,
391 U.S. at 568). To establish retaliation by a public employer, a plaintiff must show that (1)
they spoke as a private citizen and not in their official capacity as a public employee; (2) they
spoke on a matter of public concern; (3) the plaintiff’s protected speech was a substantial

motivating factor in the employer’s adverse action; (4) the employer did not have an adequate
justification for treating the plaintiff differently than members of the general public; and (5) the
employer would not have taken the adverse employment action absent the protected speech. Eng
v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
Defendants concede that Rollins spoke as a private citizen, but they argue that he did not
speak on a matter of public concern. Speech involves a matter of public concern when it relates
to “any matter of political, social, or other concern to the community.” Connick v. Myers, 461

5 Plaintiffs and Defendants agree that although Rollins was not an employee at the time of the
alleged retaliation, Pickering provides the appropriate framework for analyzing his claims
because he was an applicant for public employment.
U.S. 138, 146 (1983). But speech that involves “individual personnel disputes and grievances” is
not a matter of public concern. McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983).
Defendants argue that when Rollins complained about the hiring of Wasmund, “he was
concerned about whether he would have autonomy with the program.” Def. Mot. 11. But
Defendants present no facts to support their conclusion about Rollins’s motivation. Rollins spoke

to McIrvin, Fast, and team parents about his concerns regarding Wasmund’s past relationship
with a female student athlete and the treatment of girls on the McMinnville cross-country team.
Issues of gender discrimination in athletics are matters of public concern. See Burch v. Regents
of the Univ. of California, 433 F. Supp. 2d 1110, 1130 (E.D. Cal. 2006) (holding that a wrestling
coach’s speech about gender discrimination affecting female wrestlers was a matter of public
concern). Thus, Rollins spoke as a private citizen on a matter a public concern.
Next, whether Rollins’s protected speech was a substantial motivating factor in
Defendants’ decision to not rehire him as assistant coach is a question of fact. As with Plaintiffs’
Title IX claim, the temporal association of Rollins’s speech and Defendants’ decision not to

rehire him suggests a causal relationship. But the ultimate determination of whether Defendants’
motivation for the actions they took can only be made by weighing disputed facts. A reasonable
jury could find that Defendants prevented Rollins from coaching because he spoke out about
gender inequities in the McMinnville High School cross-country program.
Similarly, whether Defendants had adequate justification to treat Rollins differently than
the members of the general public requires resolution of disputed facts. Defendants assert that
their adverse employment decision, even if motivated by Rollins’s protected speech, was
justified by their goal of preventing disruption and promoting unity within the cross-country
program. Plaintiffs dispute whether there was any evidence of potential disruption to the cross-
country program. These factual disputes cannot be resolved by this Court on a motion for
summary judgment.
2. Student Plaintiffs
Defendants also move for summary judgment on Student Plaintiffs’ claim brought under
the First Amendment. The Supreme Court has clearly stated that public school students have

First Amendment free speech rights. See Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503,
506 (1969) (stating that students do not “shed their constitutional rights to free speech at the
schoolhouse gate”). But student speech may be subject to more restrictions and is analyzed
differently than that of public employees. To establish a claim for retaliation in violation of their
First Amendment free speech rights, students must show that (1) they were engaged in a
constitutionally protected activity, (2) the defendants’ actions would chill a person of ordinary
firmness from continuing to engage in the protected activity, and (3) the protected activity was a
substantial or motivating factor in the defendants’ conduct. Pinard v. Clatskanie Sch. Dist. 6J,
467 F.3d 755, 770 (9th Cir. 2006). If plaintiffs establish these elements, the burden shifts to the

defendants to show that they would have taken the same action even in the absence of the
protected conduct. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir.
2001).
Defendants concede that Student Plaintiffs’ complaints about gender inequity in the
cross-country program is constitutionally protected speech. But Defendants assert that Student
Plaintiffs’ claims are “wholly derivative of Ty Rollins’ claims” and are causally reversed. Def.
Mot. 13. Defendants again misstate Student Plaintiffs’ claim. Student Plaintiffs met with
Defendants McIrvin and Fast in July 2019 to express their concerns about Wasmund and about
gender discrimination in the cross-country program. They also refused to workout with
Wasmund that summer because they were concerned about unwanted sexual attention. Plaintiffs
then allege they were provided inadequate coaching and not pushed hard enough during the fall
2019 cross-country season in retaliation for speaking out during the summer. If Defendants
deliberately provided poor or inadequate coaching to a previously successful team, a reasonable
jury could find that such action would chill a student athlete of ordinary firmness from voicing

concerns about the program. See Arizona Students’ Ass’n. v. Arizona Bd. of Regents, 824 F.3d
858, 868 (9th Cir. 2016) (“[T]he test for determining whether the alleged retaliatory conduct
chills free speech . . . asks whether the retaliatory acts would lead ordinary students in the
plaintiffs’ position to refrain from protected speech.”) (internal quotation marks and citation
omitted).
The next questions are whether Student Plaintiffs expressive conduct was a substantial
motivating factor for Defendants to provide inadequate coaching and whether Defendants
“would have taken the same action even in the absence” of Students Plaintiffs’ speaking out
against Wasmund and the program. Pinard, 467 F.3d at 771. “Otherwise lawful government

action may nonetheless be unlawful if motivated by retaliation for having engaged in activity
protected under the First Amendment.” O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016).
Even if Student Plaintiffs had no entitlement to a certain level of coaching, providing inadequate
coaching violated their First Amendment rights if Defendants did so with a retaliatory motive.
Determining Defendants’ motives for their hiring and coaching decisions requires resolution of
disputed facts. Viewing the facts in the light most favorable to Student Plaintiffs, a reasonable
jury could infer that Defendants reduced coaching for the girls’ team because several girls spoke
out against and refused to train with Wasmund.
B. Qualified Immunity
Defendants McIrvin and Fast assert that they are entitled to qualified immunity. A
defendant is entitled to qualified immunity if their conduct “does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald¸ 457 U.S. 800, 818 (1982). The qualified immunity analysis requires a court to

address two questions: (1) whether the facts alleged or shown by the plaintiff establish a
constitutional violation and (2) whether the right at issue was clearly established at the time.
Saucier v. Katz, 533 U.S. 194, 201 (2001). The right must have been clearly established at the
time of the defendant’s alleged misconduct, so that reasonable official would have understood
that what he or she was doing under the circumstances violated that right. Wilson v. Layne, 526
U.S. 603, 615 (1999).
The Supreme Court has repeatedly admonished courts “not to define clearly established
law at a high level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotation
marks and citation omitted). “The dispositive question is whether the violative nature of

particular conduct is clearly established. This inquiry must be undertaken in light of the specific
context of the case, not as a broad general proposition.” Id. (internal quotation marks and citation
omitted, emphasis in original). Even if a right is clearly established, qualified immunity protects
an official from reasonable mistakes about the legality of his actions. Wilkins v. City of Oakland,
350 F.3d 949, 954-55 (9th Cir. 2003). The official is still entitled to qualified immunity if the
official “could have believed, ‘reasonably but mistakenly . . . that his or her conduct did not
violate a clearly established constitutional right.’” Skoog v. Cnty. of Clackamas, 469 F.3d 1221,
1229 (9th Cir. 2006) (quoting Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001)).
“The protection of qualified immunity applies regardless of whether the government official’s
error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and
fact.” Pearson, 555 U.S. at 231 (internal quotation marks and citation omitted).
Plaintiffs have created questions of fact as to whether Defendants Fast and McIrvin
violated Plaintiffs’ First Amendment rights. The Court must now consider whether those rights
were clearly established by fall 2019, which was the time of the alleged unconstitutional actions.

“To determine whether [an official] violated clearly established law, we look to cases relevant to
the situation [the official] confronted, mindful that there need not be a case directly on point.”
A.K.H. rel. Landeros v. City of Tustin, 837 F.3d 1005, 1013 (9th Cir. 2016) (internal quotation
marks and citation omitted). And, while there need not be a case directly on point, “existing
precedent must place the lawfulness of the particular [action] beyond debate,” for which “a body
of relevant case law is usually necessary.” City of Escondido v. Emmons, ___U.S.___, 139 S. Ct.
500, 504 (2019) (internal quotation marks and citation omitted); see Anderson v. Creighton 483
U.S. 635, 640 (1987) (“This is not to say that an official action is protected
by qualified immunity unless the very action in question has previously been held unlawful, but

it is to say that in the light of pre-existing law the unlawfulness must be apparent.”).
Plaintiffs cite cases in which the Ninth Circuit has held that disciplinary action by a
school district in response to a teacher or coach criticizing district policies violated the First
Amendment. See Anderson v. Cent. Point Sch. Dist. No. 6, 746 F.2d 505, 506-508 (9th Cir.
1984) (holding that the First Amendment rights of an assistant coach were violated when a
school superintendent suspended him for communicating directly with school board members
about problems in the school’s athletic program); Settlegoode v. Portland Pub. Schs., 371 F.3d
503, 514 (9th Cir. 2004) (holding that retaliation against a physical education teacher for
complaining about discrimination against disabled students violated the teacher’s First
Amendment rights). Defendants claim these cases do not reflect the exact constitutional violation
alleged here. Specifically, Defendants point out that the retaliation in these cases involved
disciplinary acts directed at plaintiffs who were employees at the time. Defendants contend that
their refusal to rehire Rollins is not an analogous situation.
The Supreme Court has clearly established that a public employer violates a prospective

employee’s rights when it refuses to hire the candidate in retaliation for engaging in
constitutionally protected free speech. See Perry v. Sinderman, 408 U.S. 593, 598 (1972)
(holding that a decision to not renew a nontenured public school teacher’s one-year contract
“could not be made in retaliation for his exercise of the constitutional right to free speech”); see
also Shelton v. Tucker, 364 U.S. 479 (1960) (holding that a state cannot condition the year-to-
year rehiring of teachers on compelled disclosures that violate the First Amendment). Ninth
Circuit case law makes clear that retaliation in response to a person criticizing a public school
district violates that person’s constitutional rights. See Anderson, 746 F.2d at 507; Settlegoode,
371 F.3d at 516; Keyser, 265 F.3d at 749. Thus, McIrvin and Fast violated clearly established

law if they retaliated against Rollins by refusing to rehire him because he engaged in
constitutionally protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 283-84 (“Even though [plaintiff] could have been discharged for no reason whatever, . . . he
may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by
reason of his exercise of constitutionally protected First Amendment freedoms.”).
As to Student Plaintiffs, Pinard established that in the Ninth Circuit, school districts may
not retaliate against student athletes who engage in protected speech. 467 F.3d at 772. In Pinard,
several high school basketball players were permanently suspended from the team for engaging
in protest against an abusive coach. Id. at 761-62. Here, Student Plaintiffs allege a different form
of retaliation—inattention by coaching staff, withholding of adequate coaching, and worsening
gender discrimination. Although the alleged retaliatory acts are different, “officials can still be
on notice that their conduct violates established law even in novel factual circumstances.” Eng,
552 F.3d at 1076 (internal quotations and citation omitted). The key similarity with Pinard is that
the retaliatory act “would lead ordinary student athletes in the plaintiffs’ position to refrain from

complaining[.]” Id. at 770. The form of retaliation need not be the same for the right to have
been clearly established.
The Court concludes that because the constitutional rights in question were clearly
established, Defendants McIrvin and Fast are not entitled to qualified immunity. Summary
judgment on Plaintiffs’ § 1983 claims is denied.
C. Monell Liability for McMinnville School District
Defendants argue that there is no basis for MSD to be liable for the alleged violation of
Plaintiffs’ constitutional rights by Defendants McIrvin and Fast.
For a municipality to be liable under § 1983, Plaintiffs must show that a municipal

custom or policy caused the violation of their constitutional rights. Monell v. Dep’t. of Soc.
Servs., 436 U.S. 658, 690 (1978) (holding that a municipality is a “person” subject to liability
under § 1983 when it causes a constitutional tort through “a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers”). The
municipality itself must cause the constitutional deprivation and may not be held vicariously
liable for the unconstitutional acts of its employees under a respondeat superior theory. Id.; see
also City of Canton v. Harris, 489 U.S. 378, 385 (1989) (requiring “a direct causal link between
a municipal policy or custom and the alleged constitutional deprivation”). The Ninth Circuit has
held that a plaintiff may establish municipal liability under Monell in one of three ways: (1) the
government official “committed the alleged constitutional violation pursuant to a formal
governmental policy or a longstanding practice or custom which constitutes the standard
operating procedure of the local governmental entity,” (2) “the individual who committed the
constitutional tort was an official with final policy-making authority,” or (3) “an official with
final policy-making authority ratified a subordinate's unconstitutional decision or action and the

basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (citations omitted).
As discussed above, the Court finds that questions of fact preclude granting summary
judgment for the individual Defendants on Plaintiffs’ constitutional claims. The Court now
analyzes each of the avenues through which Plaintiffs allege Monell liability to determine
whether MSD is entitled to summary judgment on Plaintiffs’ Monell claims.
First, Plaintiffs allege that Defendants retaliated against them pursuant to a policy,
custom, or practice. Compl. ¶ 39. Generally, to succeed on a Monell claim under this theory, the
custom or practice “must be so ‘persistent and widespread’ that it constitutes a ‘permanent and
well settled [municipal] policy.’” Trevino v. Gates, 99 F.3d 911, 919 (9th Cir. 1996) (quoting

Monell, 436 U.S. at 691). Plaintiffs allege no facts and make no legal arguments to support the
claim that MSD has a policy, custom, or practice of retaliating against either students or
employees who exercise their First Amendment rights to free speech. “A single constitutional
deprivation ordinarily is insufficient to establish a longstanding practice or custom” under
Monell. Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999).
Second, Plaintiffs’ base their Monell claim on Defendants McIrvin and Fast being the
“final policymakers with respect to retaliatory actions.” Compl. ¶ 40. Determining whether an
official is a final policymaker is a “legal question to be resolved by the [court].” Shutlz v.
Multnomah Cnty., No. 08-CV-886-BR, 2009 WL 1476689, at *5 (D. Or. May 27, 2009) (quoting
Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999)). A final policymaker must have such
authority that “a final decision by that person may appropriately be attributed to the [school]
[d]istrict.” Lytle v. Carl, 382 F.3d 978, 983 (9th Cir. 2004). But an official can be a final
policymaker by having authority just “in a particular area, or on a particular issue.” McMillian v.
Monroe Cnty., 520 U.S. 781, 785 (1997). And policymaking authority may be delegated in

certain circumstances. City of St. Louis v. Praprotnik, 485 U.S. 112, 124.
Under Oregon law, school boards have general final policymaking authority for school
districts. See O.R.S. § 332.072 (“[D]istrict school boards have control of the district schools and
are responsible for educating children residing in the district.”). The McMinnville School Board
establishes general policy for hiring employees. Pl. Ex. 31, ECF 24-31. Plaintiffs assert that the
school board delegated authority for hiring all personnel to the superintendent who then
delegated final policymaking authority for hiring coaches at McMinnville High School to
Defendants McIrvin and Fast. Pl. Resp. 29. The question the Court must ask is “whether the
policymaker merely has delegated discretion to act, or whether it has done more by delegating

final policymaking authority.” Christie, 176. F.3d at 1236.
Defendants McIrvin and Fast made the decision to not rehire Rollins, and they are also
responsible for the decisions to hire coaches who allegedly provided Student Plaintiffs with
substandard coaching. But the authority to make discretionary hiring decisions does not by itself
constitute final policymaking authority. See Vejo v. Portland Pub. Schs., 204 F. Supp. 3d 1149,
1163 (D. Or. 2016) (“The authority to hire and fire is insufficient to show policy making
authority; the plaintiff must show the decision was made by a person with the power to establish
policy for the entire entity.”). “Municipal liability attaches only where the decisionmaker
possesses final authority to establish municipal policy with respect to the action ordered.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). Even if Defendants McIrvin and Fast
made hiring decisions that violated Plaintiffs’ constitutional rights, Plaintiffs have presented no
facts indicating that those decisions established official hiring policy for MSD.
Third, to establish that a municipal entity ratified a subordinate’s discretionary decision,
plaintiffs must show that the entity both approved of the decision and the basis for it. Gillette,

979 F.2d at 1348. Failure to overrule a discretionary decision made by a subordinate is
insufficient to create municipal liability under Monell. Id. The McMinnville School Board
approves a “monthly personnel report” that includes all the employee hiring and terminations at
McMinnville High School. Middleton Decl. Ex. 12 (“Russell Dep.”) 6:21-7:4. But to be liable
for any unconstitutional hiring decisions by Defendants McIrvin and Fast, the school board as
final policymaker must have known that the actions were unconstitutional and made the
deliberate choice to approve them. See Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992)
(holding that for municipal liability, a final policymaker must make “a deliberate choice to
follow a course of action . . . made from among various alternatives) (internal quotation marks

and citations omitted). Plaintiffs do not provide any facts that would suggest the school board
ratified the alleged unconstitutional acts of McIrvin and Fast. Because the school district is not
liable for the discretionary hiring decisions made by McIrvin and Fast under Monell, the Court
grants summary judgment for MSD on Plaintiffs’ § 1983 damages claims.
III. Retaliation Against Students under O.R.S. 659.852
Student Plaintiffs bring a claim against MSD for retaliation in violation of Oregon state
law. Compl. ¶¶ 43-46. Under Oregon law, “[a] student of an education program may not be
subjected to retaliation by an education program for the reason that the student has in good faith
reported information that the student believes is evidence of a violation of a state or federal law,
rule or regulation.” O.R.S. 659.852(2).6 The statute authorizes students or their parents or
guardians to bring civil actions against entities they allege violate the statute. O.R.S. 659.852(3).
The Court finds that a claim under the O.R.S. 659.852 should be analyzed in the same
manner as a Title IX retaliation claim.7 Thus, as with their Title IX claim, questions of fact exist
as to whether MSD retaliated against Student Plaintiffs in violation of O.R.S. 659.852. Summary

judgment for Defendants on this state statutory claim is denied.
IV. Retaliation by Public Employer under O.R.S. 659A.203
Plaintiff Rollins brings a claim for retaliation under an Oregon whistleblower law that
protects public employees. Under Oregon statute, a public employer may not “take or threaten to
take disciplinary action against an employee for the disclosure of information that the employee
reasonably believes is evidence of . . . [a] violation of any federal, state or local law, rule or
regulation by the public . . . employer.” O.R.S. 659A.203(1)(b)(A). Importantly, the statute only
protects employees from retaliatory actions by their public employers. See Delia v. Benton Cnty.,
No. 05-6123-HO, 2006 WL 3491081, at *5 (D. Or. Dec. 1, 2006) (holding that only current

employees, but not applicants for employment, are protected by O.R.S. 659A.203); Howard v.
City of Coos Bay, 871 F.3d 1032 (9th Cir. 2017) (holding that a job applicant is not protected
under O.R.S. 659A.203, “regardless of any status as a former employee”).
Rollins was not employed by MSD at the time of the alleged retaliatory acts. Rollins
resigned from his assistant cross-country coach position in July 2019. He alleges that the school

6 The definition of “retaliation” includes “other adverse action that substantially disadvantages a
student in academic, employment or extracurricular activities.” O.R.S. 659.852(1)(b).
7 Although there is no case law that applies O.R.S. 659.852, the statute’s text outlines elements
that are nearly identical to those required for Title IX retaliation claims.
district retaliated against him in fall 2019 by not rehiring him and by barring him from volunteer
coaching. These alleged retaliatory actions occurred when he was no longer an employee.
Rollins asserts that he brings this claim under section (1)(d) of O.R.S. 659.203A rather
than section (1)(b), and that section (1)(d) is not limited to employees .8 Pl. Resp. 33. However,
Rollins provides no basis for his assumption. In fact, the text of section (1)(d) refers to sections

(1)(a)-(c) of the statute, which specifically apply only to “employees.” O.R.S. 659A.203(a)-(d).
In addition, administrative rules clarify that section (1)(d) only applies to employees. Or. Admin.
R. 839-010-0050.9 Rollins, therefore, has no legal basis for his claim under O.R.S. 659A.203.
The Court grants summary judgment for Defendants on this claim.
V. Violation of the Oregon Constitution Article I, Section 8
Plaintiffs’ final claim asserts that MSD violated the free speech guarantee of the Oregon
Constitution.10 This Court has previously stated that Article I, section 8 does not provide greater
protection than the First Amendment against retaliation. German v. Eudaly, No. 3:17-cv-2028-
MO, 2018 WL 3212020, at *5 (D. Or. June 29, 2018). The Court also notes that there is no

private right of action for damages under the Oregon Constitution. See Hunter v. City of Eugene,
309 Or. 298, 304, 787 P.2d 881, 884 (1990) (“[P]ersons whose rights are violated by a
municipality or its employes [sic] may not bring an action for damages against the municipality

8 O.R.S. 659.203(1)(d) states that is unlawful for a public employer to “[d]iscourage, restrain,
dissuade, coerce, prevent or otherwise interfere with disclosure or discussions described in this
section.”
9 Or. Admin. R. 839-010-0050(1) states that “ORS 659A.203 (1)(b) and (d) require that a public
employer not prohibit, discourage, restrain, dissuade, coerce, or otherwise interfere with any
employee disclosing to any person, or take or threaten to take disciplinary action against any
employee for disclosing information[.]” (emphasis added).
10 “No law shall be passed restraining the free expression of opinion, or restricting the right to
speak, write, or print freely on any subject whatever[.]” OR. CONST. art. I, § 8.
or its employes [sic] directly under the constitution.”). Plaintiffs clarify that, on their claim under
the Oregon Constitution, they only seek declaratory and injunctive relief. Pl. Resp. 31.
As to Plaintiffs’ claims for injunctive relief, there is no guiding caselaw for retaliation
claims under the free speech clause of the Oregon Constitution. While no state or local laws are
at issue here, Plaintiffs assert that their claim is an as-applied challenge to Defendants’

unconstitutional application of their statutory power to conduct school district business. Pl. Resp.
32. But Plaintiffs provide no support for their proposition. Because on its face, Article I, section
8 applies only to enacted laws that restrain free speech, and no law or ordinance or even policy is
at issue here, the Court finds no basis to grant relief to Plaintiffs under the Oregon Constitution.
Summary judgment for Defendants on the state constitutional claim is granted.
CONCLUSION
The Court GRANTS in part and DENIES in part Defendants’ Motion for Summary
Judgment [18]. The Court grants summary judgment for McMinnville School District on
Plaintiffs’ claims under 42 U.S.C. § 1983, O.R.S. 659A.203, and Article I, section 8 of the

Oregon Constitution. The Court denies summary judgment for McMinnville School District on
Plaintiffs’ claims under Title IX and O.R.S. 659.852 and for Defendants Fast and McIrvin on
Plaintiffs’ § 1983 claims.
IT IS SO ORDERED.

DATED:___N_o_v_e_m__b_e_r_ 2__7_, _2_0_2_1____.

______________________________
MARCO A. HERNÁNDEZ
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10394058. Public record. Not legal advice.