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Free-Speech Suit Is a Kick in the Pants for the 9th

HONOLULU (CN) - The 9th Circuit seemed unlikely on Tuesday to side with a college basketball coach who was fired either for supporting women's rights or kicking a player in the rear hard enough to make her cry, depending on whose story is to be believed.

After four years of coaching the University of Hawaii women's basketball team, James Bolla says he presented demands to the school's new athletic director, co-defendant James Donovan, for equal footing with the men's basketball program.

"Bolla wanted things like a secretary, more coaches, increased budget, the ability to use buses instead of cars, and summer school for the student athletes," according to the District of Hawaii's summary of the case. The court noted that Donovan disputes whether Bolla ever raised Title IX issues.

Though the university had historically felt that Bolla had an effective coaching style, Donovan says he began hearing complaints from the team shortly after this 2008 meeting.

Donovan ultimately issued a written reprimand to Bolla in August 2008 for "inappropriate" conduct, including verbal abuse of the athletes. Bolla got another warning in January 2009 for making critical comments about the community to a local newspaper, and shortly thereafter Donovan learned that Bolla had allegedly kicked an athlete in the buttocks after threatening her by saying, "I'm gonna put my foot up your ass."

Bolla characterized the incident differently, claiming to have said he would "stick it where the sun don't shine," and then "tapp[ing]" her with his foot, causing her eyes to tear up.

Donovan suspended Bolla in February and fired him in March.

But Bolla filed suit, claiming that the reprimands were a pretext to fire him for his complaints of gender inequality.

A federal judge granted the school summary judgment in December 2010, and the 9th Circuit indicated it would affirm at oral arguments Tuesday.

The school's attorney, John-Anderson Meyer, cited several witnesses who backed Donovan's version of events.

"Over 20 people, including 14 players corroborated the kick incident, constituting a legitimate, non-retaliatory reason for termination," Meyer told the three-judge panel.

Bolla's attorney, R. Steven Geshell, insisted that Donovan admitted to singling out Bolla for a harsher punishment than necessary.

During one of the investigations, Donovan allegedly said that he had "found similar complaints from players about other bad behavior, by other coaches, but that [Donovan] was going to treat Bolla differently, because this was going to turn into a lawsuit [by the female players]," Geshell told the panel.

The judges seemed unconvinced, however, since Geshell could not produce this exact statement in the record.

Geshell said the school's records support Bolla's story.

"He [Donovan] wanted to get rid of this guy, because he wanted to ameliorate the women's basketball team," Geshell added. "None of the complaints [from student-athletes] were even in Bolla's file, until he requested his 'laundry list' of things he wanted for his team. Hence, this was an attempt to 'line up' to fire him."

Meyer countered that Bolla's timeline does not add up.

"It was the student complaints that preceded the investigation of Bolla's claims of disparate treatment by the university," Meyer said. "And he never denied the physical contact. That alone - given that he was put on warning - is not sufficient to defeat summary judgment."

Judge Stephen Trott said the earlier warning against Bolla puts him in a different situation from other coaches who might be suspended, rather than fired, for "nudging" a player.

"We're talking about his coaching style," Trott said. "It might have worked with men 30 years ago; I'm not sure today, with women."

Judge Mary Murguia also noted another athlete's complaint that turned up in the school's investigation. "There was an expletive before the arm comment," Murguia said, referring to Bolla's alleged remark, "If that were me, I would have broken your fucking arm."

Trott continued, "It's not that way anymore, counselor."

Geshell replied, "Well, that was a mistake. We'd like a jury to decide."

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