College Baseball Coach's Defamation Case, Alleging School Said He Was Fired Because He Acted in Racist Ways, Allowed to Go Forward

After the federal judge denied the university's motion for summary judgment, the case settled. Among other things, the judge concluded that allegations that a coach acted in a racist way were "defamation per se," so that plaintiff didn't have to show specific damages stemming from the allegations.

From Judge David Alan Ezra's decision in Penders v. St. Edward's Univ. (W.D. Tex.), decided in March but just recently posted to Westlaw; the case has since settled, for an amount that to my knowledge has not been made public:

Penders is a white male who formerly worked as the head baseball coach of SEU from the fall of 2006, until his termination on December 3, 2021. According to Penders, he is the winningest coach in SEU history and was a model employee of SEU.

Prior to the 2020 baseball season, Penders alleges that he recruited Jacques Palmer, a black male, to play baseball at SEU, but the 2020 season was abruptly cancelled due to the COVID-19 pandemic. During the 2021 season, according to Penders, Palmer went 0 for 8, but had limited playing time, and his eligibility expired at the end of that season. Palmer asked SEU to petition the NCAA for an additional year of eligibility. SEU apparently made the decision not to do so; Penders alleges that although the decision whether to petition the NCAA for the extra year of eligibility was not up to him, Palmer learned he would not be eligible and decided to make a complaint to SEU accusing Penders of racism and discrimination against Palmer as a black male.

Thereafter, SEU hired an external investigator to investigate Palmer's allegations. According to Penders, the investigator determined that Penders did not engage in any racist or discriminatory acts and that he had not violated any SEU rule or policy. Despite knowing the outcome of the independent investigation, Penders alleges that SEU and SEU President Montserratt Fuentes ("Fuentes") worked to conceal the outcome of the investigation and intentionally misled the community in an effort "to falsely portray herself [Fuentes] as fighting … for 'social justice.'" Penders contends that SEU and Fuentes "deliberately led students, faculty and the community to conclude that Penders had engaged in racist and discriminatory acts even though an external investigator and Fuentes herself concluded precisely the opposite."

According to Penders, SEU had a communication plan to conceal from the community the outcome of the investigation and to deploy "optics" which would mislead students into believing Penders had been found guilty of discrimination, and that certain "consequences," including watching training videos on communicating with players and cultural awareness, had been imposed on Penders for discriminatory conduct. Penders suggests SEU intentionally and dishonestly portrayed Fuentes as fighting against Penders for "social justice" to display SEU in a good light following the events of the May 25, 2020 murder of George Floyd by a police officer in Minneapolis, Minnesota, which triggered national conversations about racial violence and inequality, including in university settings such as SEU.

Subsequent to the investigation, Penders alleges that after SEU notified Palmer of the outcome of the investigation exonerating Penders, Palmer took to social media in an effort to put pressure on Fuentes to fire Penders. On October 4, 2021, Penders asserts that Palmer and his friend posted an online petition with the headline "Remove Coach Penders of St. Edward's University for Racist Comments and Discrimination." Penders contends that the petition inaccurately states that he was "found guilty" of several claims, including saying the "N-word" in front of the team before a practice, telling black student athletes to remove their head coverings, and telling black players about his family's racist history and being insensitive to the experiences of black people." The petition goes on to read that "[d]espite the University finding [Penders] guilty, they have chosen not to suspend or remove him from his position" and that the petition seeks to remove Penders from his position to make SEU "understand the severity of [Penders'] actions and the consequences his discrimination has on Black players."

According to Penders, Fuentes quickly learned of the petition and the students' reactions to it and instead of telling the truth about the outcome of the investigation, Fuentes instead "chose to mislead students and faculty to further perpetuate the false narrative of a racist White employee whose racism Fuentes was pretending to have stood up to." On October 5, 2021, Fuentes sent an email to every member of the university community in direct response to the petition which states that "[a] recent and confidential athletics personnel matter necessitated a thorough and comprehensive investigation conducted by an independent firm," and that "[f]ollowing the investigation, the university has taken actions, and there have been consequences which are consistent with the university's mission and policies."

Penders contends that Fuentes's statement failed to include that the independent investigation had actually exonerated Penders. Penders asserts that Fuentes intentionally declined to include this information "to leave the community with the false sense that [she] was battling against racism." According to Penders, given that Fuentes had just started her tenure as the SEU president on July 21, 2021, or just over two months prior to the petition, Fuentes sought "to bolster her 'social justice' credentials at this early hour of her presidency" because she was the "first Hispanic president to lead St. Edward's."

Penders alleges that Fuentes's email to the university community triggered the petition to gain over 600 signatures calling for Penders's termination, including some signatures by SEU faculty members who had no knowledge the investigation had exonerated Penders. Additionally, Penders states that the university newspaper reported on the email Fuentes had sent out and stated that the investigation involved Penders. Despite the article being published in the school newspaper, Penders argues that Fuentes and SEU again declined to set the record straight that he had been cleared of any wrongdoing. On October 13, 2021, subsequent to the article, a student-led protest and demonstration occurred on the SEU campus which called for Pender's resignation.

Thereafter, Penders states that Melinda Terry, Associate Director of Athletics for Compliance, informed him that she had requested that Lisa Kirkpatrick, Vice President for Student Affairs, set the record straight about the outcome of the investigation, but that SEU never did. On October 22, 2021, Penders alleges that a faculty senate meeting turned heated with questions concerning why Penders had not yet been terminated and again Fuentes and SEU refused to tell the truth of the investigation. According to Penders, during this whole time, Fuentes had instructed him to say nothing about the allegations or the investigation.

Subsequently, Dom Thornton, a different, former SEU baseball player came forward to accuse Penders of race discrimination for events that had happened more than three years' prior in 2018. Penders alleges that Thornton played only one season at SEU and that, during a game, Penders and Thornton got into a disagreement about Thornton's swing on a pitch which ultimately resulted in Thornton quitting the team during the middle of the game. After he failed to show up for a double header scheduled that weekend, Thornton texted Penders, asking him if he could get back on the team. Penders met with Thornton the following week to discuss it, along with SEU assistant baseball coaches Bryan Faulds and David Wood, informing Thornton that he would not be allowed to return to the team. Penders, however, allowed Thornton to keep his athletic scholarship. According to Penders, there was nothing about the interaction with Thornton that had to do with his race.

Penders alleges that, in October 2021, over three years later, Thornton "sought to capitalize" on "the controversy" created by Palmer and demanded a monetary settlement from SEU. Penders states that Thornton's lawyer notified SEU that Thornton had secretly recorded his conversation with Penders from 2018 when Thornton had asked Penders to be reinstated to the team, giving a copy of the tape to SEU. Thereafter, on October 18, 2021, Penders was notified by SEU that another complaint had been filed against him for race discrimination, and that the same external investigator would be handling the investigation of the complaint.

According to Penders, following a thorough investigation, the external investigator once again found that Penders had not engaged in racism, discrimination, or any other violation of a university policy or rule in his dealings with Thornton. Penders alleges that SEU leadership, including Fuentes, agreed with the investigator's findings exonerating Penders. The results of the investigation were communicated to Penders by SEU on November 16, 2021, and he received written confirmation on December 2, 2021, that the "investigation did not find any support for the allegations of racial discrimination or any violation of the University's discrimination policies."

Penders alleges that Fuentes was once again given an opportunity to clear Penders's name to the SEU community, especially given that a march on the SEU Main Building was soon planned as part of a #RobPendersResign movement. However, Penders contends that Fuentes and SEU still refused to communicate to anyone the results of the investigation. Instead, Penders alleges that Fuentes made the decision to terminate his employment. According to Penders, Fuentes made this decision "amid escalating pressure to fire Penders for discrimination," and her misleading the community into believing he had engaged in discrimination….

Penders was eventually fired; he sued for race discrimination (a claim that the court concluded lacked sufficient evidence), retaliation for complaints of discrimination (a claim the court allowed to go forward to trial), and for defamation, which the court also allowed to go forward to trial. Here's the heart of the defamation analysis:

Plaintiff alleges defamation claims against SEU for "publishing libelous and slanderous statements about Penders throughout 2021 by falsely and maliciously conveying the message that Rob Penders had discriminated against Jacques Palmer and Dom Thornton and that Rob Penders engaged in acts of racism and bias." … [Among other things,] Plaintiff asserts that SEU's statements in its October 5, 2021 email that it had "taken action" against Penders and imposed "consequences" for behavior that was "not alignment with its values," are all textbook examples of defamation by implication. Plaintiff argues that the key fact—that Penders was exonerated of race discrimination by SEU's own investigator—was omitted….

Plaintiff offers the following statements made by SEU that he contends constitutes defamation. First, Plaintiff offers SEU's email to the SEU community on October 5, 2021, after Palmer's online petition posted the day before, in which Palmer claimed that Penders used the "N word" in front of players, told Black players to remove their head coverings, told Black players about his family's racist history, was insensitive to Black people, and states that Penders had been found guilty of race discrimination and should be terminated. After the online petition was posted, SEU issued an email to the school community the next day which stated among others, that "[a] recent and confidential athletics personnel matter necessitated a thorough and comprehensive investigation conducted by an independent firm," and "[f]ollowing the investigation, the university has taken actions, and there have been consequences which are consistent with the university's mission and policies." Plaintiff contends this email, made without any context, infers that the allegations made by Palmer in the petition were true.

Second, Plaintiff includes evidence of an October 12, 2021 SEU school newspaper article which Plaintiff asserts led much of the student body to conclude that he had been found guilty of racism and discrimination following SEU's October 5 email.

Third, Plaintiff provides evidence of an October 14, 2021 statement by the SEU Student Government Association which SEU administrators helped draft, that states "[w]e do not condone racism." Plaintiff contends this statement is in clear reference to him as the first line in the statement discusses Palmer's petition.

Fourth, Plaintiff includes a copy of an October 20, 2021 speech co-written by SEU administration which was read at a student rally. The speech includes a statement that "[i]in light of what was shared on the [Palmer] petition, it is incredibly disappointing and concerning that a student experienced racism and anti-blackness on our campus," and that "[t]he way the university has handled this situation of bias and racism has been incredibly frustrating." Plaintiff argues this evidence demonstrates that the SEU community and the public believed Penders was guilty of discrimination and that SEU knew that its communications had led the public to that conclusion, but that it was not true and SEU knew that but still conveyed that message to the public.

Finally, Plaintiff cites evidence that on December 3, 2021, SEU issued a public statement announcing Penders's termination which referenced SEU's prior statements regarding Palmer's petition, and referred to "new concerning information and allegations … regarding the head baseball coach that are not in alignment with our values," and which Plaintiff argues clearly communicated to the public that he had been fired because he was found guilty of discrimination. As additional support for his claims, Plaintiff includes a December 16, 2021 KVUE, the Austin ABC television affiliate station, story which reports that Penders was terminated "over allegations of racism and discrimination." Plaintiff contends that "the public predictability concluded what KVUE reported based on SEU's statements: that Penders was in fact guilty of discrimination." …

Even if some of SEU's statements in isolation may not be actionable, viewing the posts in their entirety, the gist of the statements in—(1) SEU's October 5 email published only one day after Palmer's petition was posted online; (2) SEU's Student Government's statement on October 14, which Plaintiff provides evidence was in part drafted by SEU's administration; (3) the October 12 SEU newspaper article; (4) the October 14 SEU Student Government statement; (4) the October 20 speech co-written by SEU administrators; and (5) the December 3 public statement—is that Plaintiff was guilty of each of the things that Palmer accused him of in his petition, including race discrimination….

The Court finds that some of the statements that contribute to the defamatory gist of SEU's text are verifiable statements of fact. For instance, SEU's statements in the October 5 email that it had "taken action" against Penders, and imposed "consequences" for behavior that was "not in alignment with its values" are verifiable statements of fact. Additionally, although SEU argues that any statements that allegedly conveyed the message that Penders "engaged in acts of racism and bias" are not actionable because they are expressions of opinion that cannot be proven as verifiably true or false, the Court disagrees. The Court must consider this "legal question from the perspective of a reasonable person's perception of the entirety of the communication, not from isolated statements."

As discussed, Plaintiff has presented additional evidence to support his allegations that SEU conveyed the message that he had done each of the things that Palmer accused him of in his online post, including saying the "N word" in front of players, telling only Black players to remove their head coverings, explaining his family's racist history, and being insensitive to Black people. Given this, the Court finds that—from the perspective of a reasonable person's perception of the communication—SEU's discrete statements created an actionable impression that Plaintiff was guilty of racism and bias, and that these statements were not simply a statement of opinion. Accordingly, the Court concludes that Plaintiff has demonstrated that SEU's statements are "reasonably capable of a defamatory meaning." …

In support of its assertion that it made true statements, SEU cites a chart which it contends demonstrates that its true statements match the record evidence in this case. SEU also argues that its statements were substantially true and that it did not publish other true statements that would have been more damaging to Penders's reputation than the defamatory gist of its statements. These statements include that: (1) the investigator found that Penders read the term "nigga" out loud in front of baseball players, some of whom were African American; (2) the investigator found that Penders exhibited cultural insensitivity when he told baseball players, some of whom were African American that he had a history of racism in his family and that he said African American players only wore du-rags or other hair coverings because they saw athletes wear them on television rather than to protect their hair; and (3) SEU concluded that Penders treated Thornton in a disrespectful, belittling, and disparaging manner during the February 2018 meeting.

SEU also includes as evidence statements of potential employers of Penders after he was terminated who ultimately declined to hire him after SEU terminated him. SEU cites portions of these individuals' depositions which stand for the proposition that had SEU included the above statements, they would not have hired Penders.

Plaintiff, however, disputes these facts and argues that SEU's claims that it published the truth is inaccurate because the statements omit other key facts. For instance, Plaintiff cites evidence that he did not use the word "nigga" in front of baseball players and that others were present in the room when it was allegedly said and do not recall hearing it. Plaintiff also cites evidence that he was not culturally insensitive when discussing on a zoom meeting with the baseball team—which Palmer did not even attend—his family's past racial insensitiveness after SEU had encouraged its coaches to be open with their teams about racial injustice in light of the May 2020 murder of George Floyd. Plaintiff further cites SEU's letters to both Penders and Palmer subsequent to the internal investigation, and which do not conclude that Penders was racially insensitive.

Plaintiff further maintains that SEU has not met its burden with the substantial truth defense because the additional "facts" it relies on, even if they are true, are not the "substantial truth" because they omit other key facts, including that: (1) SEU's own investigator concluded that Penders did not act in a discriminatory manner or violate a university policy in regard to either Palmer or Thornton; and (2) SEU agreed with these findings. Plaintiff also argues that SEU's unpublished statements discussed above are not more damaging to Penders than the published statements, especially where they only tell half of the story.

The Court agrees with Plaintiff. Given the disputing evidence presented by the parties, the Court finds that SEU has not established as a matter of law that the gists of its statements upon which Plaintiff complains is substantially true and not more damaging than the absolute truth would be, especially where Plaintiff has presented competing evidence that SEU omitted other key facts. Instead, the Court finds a dispute of fact exists on this issue….

The court also noted that plaintiff didn't have to prove specific damages, because the accusations were "defamation per se":

"Defamation per se occurs when a statement is so obviously detrimental to one's good name that a jury may presume general damages, such as for loss of reputation or for mental anguish." "Statements that injure a person in [his] office, profession, or occupation are typically classified as defamatory per se." …

The Texas Supreme Court has determined that "'[d]isparagement of a general character, equally discreditable to all persons, is not enough unless the particular quality disparaged is of such a character that it is peculiarly valuable in the plaintiff's business or profession.'" Here, the Court finds statements that portray a baseball coach has engaged in racism or discrimination go directly to one's professional ability to lead, manage, and relate to and connect with players, including minority players on a team. Plaintiff has presented evidence that employers hiring baseball coaches consider these qualities in the decision-making process. Therefore, the Court finds that a character trait that someone is not racist, insensitive, or bias is "peculiarly valuable" in Plaintiff's profession as a baseball coach. The Court thus concludes that, contrary to SEU's arguments, Plaintiff has adequately alleged defamation per se in this case….