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The road from basketball court to trial court has been a tough one for Wayne Allen, former coach at Florida Atlantic University. But the end came nearer Monday, as jury selection began in his wrongful-termination suit against his former school. After a 13-year stretch as head coach of the women’s basketball team at FAU in Boca Raton, in which he led the team from Division II to Division I status only to see the squad’s record nosedive, Allen was fired by the school after the 1998-99 season. In the aftermath, Allen’s health deteriorated, his marriage ended and his finances spiraled into bankruptcy court. He now teaches and coaches in the Palm Beach County public school system. In February 2000, Allen filed suit in Palm Beach Circuit Court alleging he was fired because of gender discrimination. Allen claims FAU hired a woman to replace him as part of a plan to satisfy NCAA gender equity requirements and win approval for a Division I football program, which the school inaugurated in 2001. “I think I was set up to fail,” Allen said in a pretrial deposition. Jury selection in the case began Monday before Judge Art Wroble. Allen is represented by attorney Alexander Akpodiete, a Miami solo practitioner. Counsel for FAU is Joe Ackerman, a partner at Boose Casey Ciklin Lubitz Martens McBane & O’Connell in West Palm Beach. The suit has been brought under Title VII of the federal Civil Rights Act of 1964, violations of which can be tried in state courts, and under the Florida Civil Rights Act. Allen is seeking both compensatory and punitive damages, as well as costs and fees. Neither Ackerman nor FAU officials would discuss the case, citing policies against commenting about pending litigation. According to court documents, the university refused a demand last year to settle the case for $200,000. Allen coached FAU’s Lady Owls from 1987 through 1999, compiling a 167-154 record. In his first six seasons, he built the team into a Division II power, racking up five 20-win seasons and four postseason tournament appearances. The team stumbled when it moved up to Division I competition in 1993. Its record fell to 5-22 that year and the team never fully recovered. Allen was first put on notice in August 1997, but he rallied the team to a 13-15 season and won another one-year contract. The team slipped back to 5-21 in the following season, however, and the coach was let go in August 1999. Akpodiete’s alleged smoking gun is FAU’s NCAA-mandated “self-study” of 1996. Under NCAA regulations, member schools are periodically required to review and report on their athletics programs’ NCAA rules compliance, including federal Title IX gender equity requirements. Title IX, enacted in 1972, prohibits institutions that receive federal funding from practicing gender discrimination in educational programs or activities like sports. Almost all schools receive federal funds, so Title IX is nearly universal. FAU’s self-study included a promise to “develop a formal plan with goals and timetables to increase the number of women at the head coach level.” Akpodiete said that two FAU sports administrators he deposed denied the existence of such a plan, but others admitted its existence. And, he said, former FAU President Anthony Catanese — for whom Division I football status was a Holy Grail — “signed off on the plan.” “My client was a sacrificial lamb,” Akpodiete argued. “FAU needed to fill a quota of women coaches to stay in good graces with the NCAA and assure Division I football.” Akpodiete says FAU’s search process following Allen’s nonrenewal also showed gender discrimination. Twenty-eight of 64 applicants for the women’s head basketball coach position were men. But when it came down to a final four interviewees, Akpodiete said, “Magically, all four were women.” The centerpiece of FAU’s defense is straightforward: Allen was fired for nondiscriminatory reasons. The ax fell, according to an FAU answer brief, after Allen compiled a record of six consecutive losing seasons. The school alleges his replacement, current head women’s basketball coach Chancellor Dugan, was more qualified. Dugan clearly had an eye-catching record at her previous post. She had a .685 winning percentage in eight seasons at the University of Southern Indiana, including a 30-2 record and a berth in the national championship game in 1996-97. But Southern Indiana was a Division II school. Dugan, like Allen, has found FAU’s Division I competition more challenging. She brought the team to one game over .500 in her first season but has gone 55-60 overall since then, though with a winning record in the school’s conference. Daniel R. Levine, a labor and employment attorney who represents both plaintiffs and defendants at Shapiro Blasi & Wasserman in Boca Raton, called the school’s argument “a pretty strong defense. … It’s pretty clear that sports coaches survive year-to-year on their won-lost records.” But the success of that defense “will turn on a pretext inquiry,” according to Robert Weisberg, a plaintiff labor and employment attorney at the Law Offices of Robert Weisberg in Miami. “Was [plaintiff] fired because of his record or was that just a cover for a predetermined plan?” Under Title VII, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was “a motivating factor” for any employment practice, “even though other factors also motivated the practice.” Both attorneys were struck by FAU counsel Ackerman’s 10th and final affirmative defense, “that sex is a bona fide occupational qualification” for the position of women’s basketball coach. Under Title VII, “BFOQs,” as they are known, are legitimate excuses for gender and other preferences when those characteristics are “reasonably necessary to the normal operation” of the job in question. Men make up about one-third of all NCAA women’s basketball coaches. Their numbers include Geno Auriemma, head coach of reigning NCAA Division I women’s basketball champion University of Connecticut. “That will never fly,” Levine said. “BFOQs are extremely narrowly tailored.” “It seems a little disingenuous to argue. ‘Even if we did discriminate it’s OK,’” Weisberg said. “I’m not aware of the case law but intuitively it doesn’t seem ‘necessary’ to have a woman coaching women.”

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