Seeking to derail the first of three suits filed by women alleging discrimination, a Fresno State attorney told jurors Monday that former volleyball coach Lindy Vivas was fired because her team had "plateaued" -- not because Vivas pushed hard for women's athletics or was rumored to be a lesbian.
"The evidence is not going to show that the university made its decision for any illegal reasons," said lawyer Dawn Theodora during her opening statement in Vivas' civil trial. "The decision had nothing to do with her gender, her marital status, her sexual orientation or her advocacy for Title IX."
If the school had wanted to fire Vivas for those wrong reasons, it could have done so much earlier in her 14-year career with the university, Theodora said.
Vivas' suit, filed in Fresno County Superior Court, is asking for up to $4.1 million.
She testified Monday that her contract was not renewed in late 2004 following a series of bitter confrontations with the athletic department's administration. She also said the school has faltered in its commitment to Title IX laws, which prohibit gender discrimination at institutions that receive federal funds.
Vivas, 49, is one of three women who say they were forced out of the athletic department after they raised concerns that there was not enough attention and resources devoted to women athletes.
Former women's basketball coach Stacy Johnson-Klein and former associate athletic director Diane Milutinovich both have filed lawsuits that are scheduled to go to trial later this year.
Both are expected to testify in Vivas' trial.
Theodora appeared to question why Vivas' 2006 suit came after Johnson-Klein filed her suit in 2005.
Theodora said that prior to Vivas' lawsuit, Johnson-Klein and Vivas "could not stand each other" and were "practically enemies." After Johnson-Klein was hired in 2002, the two coaches would fight "like siblings" over minor disputes such as who got which parking space, she said.
Theodora said that during a 2004 conversation with Sharon Welty, the wife of university President John Welty, Johnson-Klein, in an apparent reference to Vivas, said that she "couldn't wait for the lesbians and atheists to get out of the athletic department."
Now, however, their lawsuits have brought the two together, Theodora said.
"There are strange and predictable alliances in this trial," she said. "The old saying that the enemy of my enemy is my friend has never been more true."
Johnson-Klein has said she does not want to comment on Vivas' case until she testifies, possibly Monday.
Vivas' attorney, Dan Siegel, also talked about the conversation between Johnson-Klein and Sharon Welty during his opening statements Thursday. But he also said that then-athletic director Scott Johnson told Johnson-Klein in 2002 that "we need to get rid of all the lesbians."
Theodora said Johnson and others in the athletic department never discussed Vivas' sexual orientation.
"They didn't refer to it; they didn't mention it; they didn't even think about it," she said.
Theodora said Vivas was fired for a number of reasons: She failed to persuade more Top 25 teams to come to Fresno to play the Bulldogs, she didn't increase attendance, and she never won the Western Athletic Conference championship.
Theodora said that in 1991, when Vivas was hired, the volleyball team was "in the dumps."
Vivas successfully turned the team around and went on to three appearances in the NCAA tournament -- though the Bulldogs lost in the first round each time.
After Johnson became athletic director in 2001, however, the university wanted to push its sports programs to a new level, on par with high-powered sports schools such as USC or Stanford, Theodora said.
She said Vivas' overall record of 263-167 over 14 seasons was "good, but could have been better." Vivas had not beaten a Top 25 team since 1998 and was the only coach in Fresno State history who had gone for 10 seasons without a WAC championship, Theodora said.
Essentially, the volleyball program had "plateaued," she said.
Also, in 2004, attendance dipped by 24% from the previous year, Theodora said.
Vivas testified Monday that winning the volleyball WAC championship was next to impossible because the conference was dominated by Hawaii, which has won 10 straight conference regular-season titles.
Theodora, who called Vivas an "insubordinate" and an "obstructionist," said Vivas' attitude toward her superiors also was a factor in the school's decision not to bring her back.
"A lot of this case is about personalities and communication. It's about people in the workplace who didn't get along," Theodora said. "There may have been differences of opinion and differences of personalities, but there was no unlawful conduct."