Title Ix

Michael Burch had been the University of California, Davis' head men's wrestling coach since 1995. He was employed through one-year contracts and was classified as a part-timer in the athletic department.

UCD acknowledged that the wrestling team's win-loss record, and the wrestling program overall, improved significantly during Burch's tenure. Despite that, on May 29, 2001, the university told Burch his contract would not be renewed.

Burch sued. He accused UCD of retaliation in violation of Title IX. Burch alleged that he was fired because he opposed UCD's sex discrimination against female wrestlers and he publicly advocated for them.

After the court determined that Burch had established a basic case of discrimination, UCD had to give a legitimate explanation for its decision to dismiss him. First, UCD attorneys claimed the decision was made before it learned that Burch was advocating on behalf of the female wrestlers, which is a protected activity under Title IX.

Second, it stated its decision was based on Burch's conflicts within the athletic department, his disregard for rules, his unreasonable demands for more money, his repeated budget deficits, and his failure to cooperate during an investigation into possible National Collegiate Athletic Association violations.

Burch v. Univ. of Cal., No. CV.S 04 0038 WBS GGH (106 LRP 35968) (E.D. Cal. 2006).

Should the U.S. District Court, Eastern District of California allow Burch to proceed with his Title IX retaliation claims?

a. No, because UCD had a legitimate explanation for its decision to fire him.

b. No, because the university's reasons were not legitimate in light of Burch's successful record as coach.

c. Yes, if Burch could show that the university's articulated reasons were a pretext for discrimination.

d. Yes, because Title IX guarantees plaintiff's a right to a jury trial in all cases of sexual discrimination.

Correct answer: c. Yes

If a university offers a legitimate, nondiscriminatory reason for its actions, a plaintiff has the chance to show the explanation is merely a pretext for discrimination.

A plaintiff can establish pretext by showing either 1) unlawful discrimination more likely motivated the university, or 2) the university's given explanation is unworthy of credence because it is inconsistent or otherwise not believable.

To avoid dismissal, Burch had to show the university's articulated reasons were a pretext for discrimination. He identified several inconstancies in UCD's arguments that cast doubt on the reliability of its explanation.

"The repeated instances where [Burch] has identified weaknesses and contradictions in [UCD's] proffered reasons satisfy the 'unworthy of credence' prong of the pretext analysis and cast sufficient doubt on [UCD's] explanation," the court stated. It allowed Burch's retaliation case to move forward. As the University of Illinois at Chicago's ombudsman, Caryn Bills knew grievances were increasing. To stem the tide, she helped develop the institution's Dispute Resolutions Services program.

"We chose mediation and went out to vice chancellors and asked them to each identify two people to train," Bills said. She has run DRS since 1999 and is now the deputy associate chancellor of UIC's Office for Access and Equity.

Mediation's popularity slowly grew so that by 2005, UIC saw a decrease in external charges. Bills also has shifted from spending 80 percent of her time on equal employment opportunity issues and 20 percent on mediation to a 60-40 EEO/mediation split.

Review her methods for ideas to start mediation, prevent litigation, and improve your environment.

"The goal is to catch problems before they become formal grievances and lawsuits," Bills said.

A lot must happen before mediation occurs, she noted. First, she meets with a complainant to determine if mediation is appropriate. It is not used to discipline for serious misconduct or terminate for cause, or to appeal negative tenure decisions, Bills explained. Mediation is also not used to investigate or respond to alleged unlawful harassment.

"It's mostly used for communication breakdowns, clarification of roles and responsibilities, and workplace environment issues," Bills said. Once she and the complainant set goals, Bills contacts the other party. If both sides want to meditate, Bills reviews the process, provides tips, and obtains signatures on the Agreement to Mediate form (see p. 5).

The mediation consists of one four-hour session with two mediators. UIC uses the transformative mediation model (see upper box). "The mediators are neutral. The goal is for the parties to brainstorm ideas and generate solutions," Bills said.

About 15 UIC faculty and staff are trained as volunteer mediators. "They undergo 40 hours of training and we hold bimonthly meetings," Bills said. The program is relatively inexepensive to implement with training costing about $1,000 per person.

Use of mediation has increased to about 15 cases per year. DRS has a referral program by which a 60-day hold is placed on external proceedings while the parties try mediation. "We've used it a few times and it's worked well," Bills said.

UIC is rewriting its grievance procedures to add contacting DRS and considering mediation as required steps before a grievance is filed, she added. And Bills now trains departments on teambuilding and service. "From mediations we found some problems had festered for years," she said.

For more information visit www.uic.edu/depts/oae/DRS.htm or contact Caryn Bills at cabw@uic.edu. Give disputing parties useful tips to ensure they get the most out of mediation

Changing attitudes is the key to mediation, said Caryn Bills, head of Dispute Resolution Services at the University of Illinois at Chicago. Bill hands out tips to mediation participants, including to:

* Use the opening statement to demonstrate your willingness to resolve, not escalate, the dispute and to communicate your interests and needs.

* Be respectful. That makes people

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