Plaintiff Bryan Sailer sued defendants Emporia State University and David Spafford in the United States District Court for the District of Kansas raising claims of Title IX retaliation and First Amendment retaliation under 42 U.S.C. § 1983. Defendants moved to dismiss plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6), with defendant Spafford also asserting qualified immunity.
Factual Overview
Bryan Sailer served as the head coach of Emporia State University’s women’s soccer team for over ten years and was the “winningest coach in program history” when ESU terminated his employment in December 2023. In October 2023, the women’s soccer team captains delivered a letter to ESU administrators, including University President Ken Hush and Athletic Director David Spafford, complaining about various issues affecting the team, including an unusable soccer field that forced them to play at a local high school, inadequate weightlifting facilities, and suggesting that ESU’s men’s athletic teams received more favorable treatment. The letter expressly referenced Title IX and included a summary of relevant Supreme Court precedent. Sailer assisted the team in drafting the letter and told Spafford and Hush that the letter would be delivered and that he supported the team.
After the team won the MIAA championship in November 2023, senior players took shots of alcohol while posing with the trophy, and alcohol was consumed on the team bus during the return trip to campus. Assistant coach Chloe Marquez and a graduate assistant, who had previously experienced tension with Sailer throughout the season, reported the drinking incident to Spafford and alleged that Sailer was aware of and participated in the drinking. ESU suspended Sailer the following day and terminated his employment in early December 2023 after conducting an investigation. Sailer filed an internal Title IX complaint asserting his termination was retaliation for supporting the team’s Title IX complaint, but ESU’s Title IX coordinator determined the termination was not based on his support of the complaint.
Legal Analysis
Title IX Retaliation Claim
The court analyzed whether Sailer’s complaints constituted protected activity under Title IX, which prohibits retaliation against individuals who complain of sex discrimination. ESU argued that Sailer’s complaints about the soccer field, weight training access, and team film were not complaints of sex discrimination as required under Jackson v. Birmingham Board of Education. The court granted the motion to dismiss in part, finding that Sailer’s individual complaints to Athletic Director Spafford about the weights coach prioritizing the football team and his comments to Senior Associate Athletic Director Colleen Mischke about game film issues did not constitute protected activity because they contained no reference to Title IX or gender discrimination. However, the court denied the motion to dismiss regarding Sailer’s statement of support for the team’s letter to President Hush and defendant Spafford, noting that ESU failed to address the specific contents of the team’s letter, which contained express references to Title IX and relevant case law.
First Amendment Retaliation Claim
The court applied the five-part Garcetti/Pickering test to determine whether Sailer’s speech was protected under the First Amendment. The central issue was whether Sailer spoke as a private citizen or as a government employee pursuant to his official duties. Using a case-by-case approach that examines both the content of the speech and the employee’s chosen audience, the court concluded that all of Sailer’s speech was made pursuant to his official duties as head coach. The court found that his complaints about game film access, strength training priorities, and his support of the team’s letter were all consistent with activities he was paid to perform as head coach, including navigating the internal operations of the athletic department and supporting his players’ concerns. The court emphasized that speech can fall within official duties even if not expressly required by the job description, and noted that all of Sailer’s communications were directed exclusively within his chain of command. Because Sailer failed to establish that he was speaking as a private citizen, his First Amendment claim was dismissed, and defendant Spafford was granted qualified immunity.
The court granted defendants’ motion to dismiss in part and denied in part regarding the Title IX retaliation claim against ESU, granted the motion to dismiss the First Amendment retaliation claim against Spafford, and dismissed defendant Spafford from the case with qualified immunity.
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