Hening v. Adair

644 F.Supp.3d 203

Kiersten HENING, Plaintiff, v. Charles "Chugger" ADAIR,in his individual and official capacity as head coach of the women's soccer teamat Virginia Polytechnic Institute and State University, Defendant.

Case No. 7:21cv00131

United States District Court, W.D. Virginia, Roanoke Division

Signed December 2, 2022

Adam K. Mortara, Lawfair LLC, Chicago, IL, Cameron Thomas Norris, James Paul McGlone, Jeffrey Matthew Harris, John Michael Connolly, Consovoy McCarthy PLLC, Arlington, VA, for Plaintiff.

Kay Kurtz Heidbreder, University Legal Counsel, Virginia Tech, Blacksburg, VA, Mark Allen Gess, Marvin Hudson McClanahan, Virginia Polytechnic Institute and State University, Associate University Legal Counsel & Spcl Assistant Atty Gen, Blacksburg, VA, for Defendant.

MEMORANDUM OPINION

THOMAS T. CULLEN, UNITED STATES DISTRICT JUDGE

Plaintiff Kiersten Hening, a former member of the Virginia Tech women's soccer team, filed this suit under 42 U.S.C. § 1983 against her former coach, Charles "Chugger" Adair. Specifically, Hening alleges that, after she refused to kneel in support of social-justice initiatives, including Black Lives Matter ("BLM"), prior to the team's 2020 season opener against the University of Virginia ("UVA"), Adair retaliated against her in violation of the First Amendment. According to Hening, as a direct result of her refusal to kneel while a "Unity Statement"¹ was read over the loudspeakers, Adair berated her at half-time in front of her teammates, and again at a film-review session the following week, for "bitching and moaning" and "doing [her] own thing." (Kiersten Henning Dep. 54:4-7, May 20, 2022 [ECF No. 21-1].) Adair, on the other hand, claims that he was unaware until after the UVA game that Hening had declined to take a knee and that his vocal criticism of Hening at halftime and the following week—during which he never directly mentioned the Unity Statement or her refusal to kneel—was based solely on her poor play. Hening, who had been a major on-field contributor for two years prior to the 2020 season, also asserts that Adair removed her from the starting lineup for the next two games and drastically reduced her playing time in those games because she had engaged in this protected First Amendment activity. As a result, Hening resigned from the team after the third game of the season.

Adair has filed a motion for summary judgment. He argues that Hening has not presented a triable claim of First Amendment retaliation because she has failed to establish two of the claim's three elements: (1) that Adair took some action that adversely affected Hening's First Amendment rights; or (2) that there was a causal relationship between Hening's refusal to kneel and Adair's subsequent actions toward her. This motion has been fully briefed by the parties, and the court heard oral argument on December 2, 2022. For the following reasons, the court will deny Adair's motion and allow the case to proceed to trial.

ANALYSIS

A. Summary Judgment Standard

Under Rule 56(a), the court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. (internal citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets that burden, the nonmoving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the nonmoving party. Glynn, 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, "[i]t is an 'axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.' " McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 310 (4th Cir. 2014) (quoting Tolan v. Cotton, 572 U.S. 650, 651, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam)) (cleaned up). Moreover, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The nonmoving party must, however, "set forth specific facts that go beyond the 'mere existence of a scintilla of evidence.' " Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). The nonmoving party must show that "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "In other words, to grant summary judgment the [c]ourt must determine that no reasonable jury could find for the nonmoving party on the evidence before it." Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Even when facts are not in dispute, the court cannot grant summary judgment unless there is "no genuine issue as to the inferences to be drawn from" those facts. World-Wide Rights Ltd. P'ship v. Combe, Inc., 955 F.2d 242, 244 (4th Cir. 1992).

B. First Amendment Retaliation

Hening alleges that Adair violated her First Amendment right to free speech by retaliating against her for declining to kneel prior to the UVA game. It is well-established that the First Amendment's protection of freedom of speech includes "both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (citing W. Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624, 633-34, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)). As a necessary corollary to protect that fundamental right, the "right of free speech includes . . . the right to be free from retaliation by a public official for the exercise of that right." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000)). To establish a claim for First Amendment retaliation, Hening must put forth sufficient evidence that: (1) she engaged in protected First Amendment activity; (2) Adair took some action that adversely affected her First Amendment rights; and (3) there was a causal relationship between her protected activity and Adair's actions. Id.

For purposes of his motion for summary judgment, Adair does not challenge that Hening engaged in protected First Amendment activity by declining to kneel prior to the UVA game. But he argues that Hening has not presented a triable claim of retaliation because the undisputed evidence demonstrates that he did not take any action that adversely affected her First Amendment rights, and that, even if she has, there is no causal connection between her refusal to kneel and his subsequent coaching decisions. The court will address these arguments in turn.

1. Adverse Action

The court concludes that there is sufficient evidence in the record supporting Hening's claim that Adair's actions, whatever his motives, adversely affected her First Amendment rights. In making this determination, the court applies an objective standard, asking whether "the defendant's allegedly retaliatory conduct would likely deter 'a person of ordinary firmness' from the exercise of First Amendment rights." Id. at 500 (collecting cases). In so doing, the court can consider how the alleged retaliation personally affected the plaintiff. But "[w]hile the plaintiff's actual response to the retaliatory conduct provides some evidence of the tendency of that conduct to chill First Amendment activity, it is not dispositive." Id. Moreover, "[n]ot all retaliatory conduct tends to chill First Amendment activity[,] . . . and a plaintiff seeking to recover for retaliation must show that the defendant's conduct resulted in something more than a 'de minimis inconvenience' to her exercise of First Amendment rights." Id. (quoting ACLU of Md., Inc. v. Wicomico Cnty., Md., 999 F.2d 780, 786 n.6 (4th Cir. 1993)).

A reasonable jury could find that Adair's conduct towards his former player constituted an adverse action for purposes of her First Amendment retaliation claim. Adair contends that his halftime criticism and comments at the later film-review session were justified based on Hening's poor play and were unrelated to her pregame refusal to kneel. But as Hening points out, this argument misses the mark because it impermissibly assumes that Adair's version of the facts—specifically, that his criticism was motivated by Hening's purported on-field struggles rather than her pregame actions—is true.² At the summary judgment stage, the court cannot make this credibility determination in Adair's favor; its determination is solely within the province of the jury.

Moreover, Adair's argument conflates adverse action with causation. Whatever his motivations, the court has no...