Nick Rolovich’s attorney submitted a 34-page formal appeal Tuesday outlining why the former head football coach’s termination was unjust.

“This is your opportunity to take a step back, reexamine your illegal and unconstitutional conduct, and adopt a different posture toward Coach Rolovich before you and the University are forced to defend your conduct in the context of a federal court civil rights action,” attorney Brian Fahling wrote in a cover page to Athletic Director Pat Chun.

An Athletics Department spokesperson said the department has no comment at this time.

Background Information

The appeal outlines numerous occasions where Chun allegedly was hostile toward Rolovich’s views on receiving the COVID-19 vaccine.

In May 2021, Chun allegedly told Rolovich he was worried about his mental health and that he engaged in extreme views, according to the appeal. In the same month, Chun allegedly suggested Rolovich talk to his wife “because she had been in a couple different religions he referred to as ‘cults.’”

In August, when the department first learned of the state’s vaccine mandate, Chun became more hostile toward Rolovich by allegedly trying to persuade the coach to resign once it became clear he would not be vaccinated, according to the appeal.

During a meeting with Chun that month, Rolovich was allegedly given four options: “1. Get the vaccine; 2. Don’t get the vaccine and get fired. 3. Claim an exemption; or 4. Resign right now.” The appeal alleges that during a heated exchange the options became “get vaccinated or resign.”

“Mr. Chun then accused Coach Rolovich of having situational integrity,” according to the appeal. “Mr. Chun also called the Coach a ‘Con-man’ and accused him of being selfish. Mr. Chun then stated that Coach Rolovich’s objections to receiving the vaccine were causing Mr. Chun and President Schulz reputational damage.”

During this same August meeting, Chun allegedly told the former head coach Gov. Jay Inslee “‘did this’ just to come after Coach Rolovich and WSU.” Chun also allegedly told Rolovich the Board of Regents wanted him fired, according to the appeal.

The appeal also alleges during this same meeting, Chun and Deputy Athletic Director Bryan Blair gave Rolovich a deadline of Aug. 29 to have an appeal filed, despite the appeal process being undetermined at that point. 

“They said they did not want to start a season with the Coach if they thought they may have to fire him on Oct 18th, according to the Governor’s mandate,” according to the appeal.

The appeal goes on to outline the exemption process. On Sept. 28, Rolovich completed his exemption and submitted it to Human Resource Services.

On Oct. 6, HRS allegedly notified Chun it “had determined that Coach Rolovich was entitled to a religious exemption from the COVID-19 vaccine requirement because it found that he had articulated a “sincerely held religious belief” that prevented him from complying with the Governor’s mandate,” according to the appeal.

HRS asked that Athletics reply by Oct. 8, according to the appeal.

“The Athletics Department responded to HRS on October 13 with two memoranda. The first memorandum told HRS that it had rejected HRS’ proposed accommodations and had determined that “the department is not able to accommodate this request,’” according to the appeal.

The second memorandum allegedly challenged HRS’ decision to approve Rolovich’s exemption on the grounds that he had made statements in the past “that cast doubt on his claimed sincerely held religious belief.”

On Oct. 14, HRS allegedly responded it had “expertise in environmental and occupational health and safety” to come to its decision. 

The Athletics Department allegedly rejected the HRS findings again, claiming that having an unvaccinated head coach “would create an undue hardship for WSU Athletics given his assigned duties and responsibilities,” according to the appeal. 

Athletics claimed it had already seen a reduction in donor money, that Rolovich doing work remotely had become a major story and embarrassment to the university, and “the damage to the mission and reputation of the University posed by this situation cannot be understated, nor can it be resolved by accommodation,” according to the appeal.

On Oct. 18, the day Rolovich was terminated, the appeal claims Chun scheduled a meeting with the coach at 4:30 p.m. At 4:29 p.m., Rolovich received an email stating the university was “unable to approve your request for an exemption and accommodation based on a sincerely held religious belief, practice, or observance.” 

During the meeting, Chun gave Rolovich a letter with the subject “Written Notice of Intent to Terminate for Just Cause,” according to the appeal.

Religious Exemption

The university was allegedly in violation of its own religious exemption policy by notifying Chun of Rolovich’s exemption request, according to the appeal. 

“The Workday process will show as ‘in-process’ when an exemption is requested and will be updated to ‘complete’ once reviewed and accepted. HRS will work directly with employees regarding their requested exemption as needed,” according to the HRS website. 

The appeal also refers to a story written by Jon Wilner of The Mercury News, which has an interview with Phil Weiler, WSU vice president of marketing and communications.

“An approved request would be sent to the human resources department, which would identify the employee in question and send an email to his/her supervisor indicating the exemption had been approved,” according to the story. 

At that point, Weiler said, the supervisor would determine if the unvaccinated employee would be capable of “keeping the public safe and performing his/her job effectively.”

This is an instance of the university publicly laying out the blind review process, but then allegedly not following it, according to the appeal.

“We do not know whether the University has kept its promises and followed its policy in other instances,” according to the appeal. “But we know for certain that here it did not.”

Chun allegedly provided “self-serving statements aimed at undermining Coach Rolovich’s exemption,” which was unlawful, according to the appeal.

Rolovich has a right to procedural due process as outlined in the Fourteenth Amendment to the Constitution, according to the appeal. 

There would have been no issues with due process if the university had followed its own guidelines, but by allegedly breaking these guidelines, it has violated these rights, according to the appeal. 

The appeal claims this was because the university and Chun were looking to fire Rolovich and the assistant coaches for “just cause.” A termination without this would force the university to buy out the contracts, which would have cost WSU about $5 million altogether. 

“The Fourteenth Amendment precludes the University from allowing a deeply prejudiced decisionmaker to deprive them of their property interests in their contracts in this manner,” according to the appeal.

Both the governor and the university showed hostility toward religious exemptions, thus violating First Amendment rights, according to the appeal.

An email from Inslee’s General Counsel states religious exemptions should be “as narrow as possible,” according to the appeal.

The state and university’s preference for medical exemptions over religious ones violates these same rights, according to the appeal.

 The appeal cites Tandon v. Newsom, a Supreme Court case from earlier this year. Specifically, actions taken by the government “are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”

This is tied to the email from Inslee’s General Counsel, saying that it “bluntly stated the State’s favoritism for medical exemptions over religious exemptions,” according to the appeal.

WSU’s statistics show a significantly higher percentage of medical exemptions (40.1 percent) were approved compared to religious exemptions (22.4 percent). This, according to the appeal, shows the bias against religious exemptions.

The university failing to follow up with Rolovich about his beliefs shows “HRS did not have honest doubts about his sincerity,” according to the appeal.

Numerous people won cases based on the sincerity of their belief, including EEOC v. Ilona of Hungary, Inc., according to the appeal. This case involved a Jewish employee taking time off for Yom Kippur, although she had not done so in the previous eight years and had admitted to not being a very religious person. 

In the previously mentioned emails, State Press Secretary Mike Faulk stated if there had been any doubt about religious beliefs from a state employer, “the HR professionals would engage in follow up questions to better understand the person’s history, such as demonstrating changes they have made as an adult based on those beliefs. We understand people’s religious views may change over time.”

Rolovich never received any such follow-up questions, according to the appeal. Rather, Chun allegedly followed up with HRS himself.

Rolovich should not have been fired with “just cause,” as he had followed the vaccine mandate by being granted an exemption by HRS, according to the appeal.

In the written notice of termination that Rolovich received, Chun claimed Rolovich “voic[ed] physical threats regarding a coach we talked about,” according to the appeal.

Rolovich allegedly sent an email back to Chun, stating this was an inaccurate statement, according to the appeal. Rolovich confirmed the coach is his former mentor June Jones, who leaked that Rolovich filed for a religious exemption.

Chun had been having conversations with Jones about him replacing Rolovich, according to the appeal.

“My words were clearly not meant as a threat, but they were intended to express to Bryan my frustration with, and dislike of June Jones,” Rolovich wrote in the email excerpt shown in the appeal. “I found it entirely inappropriate and in bad faith that you and June were having discussions about him replacing me.”

Accommodations

After Rolovich was granted his exemption by HRS, Environmental Health and Safety used its “expertise” to create accommodations specific to the coach and his position without sacrificing the safety of others, according to the appeal.

“The past year shows that Coach Rolovich could indeed work safely and effectively under the University’s safety protocols,” according to the appeal.

Rolovich’s exemption being granted means WSU could not fire its head coach with “just cause,” according to the appeal. 

According to Farnam v. CRISTA Ministries, “an employer cannot have just cause to terminate an employee ‘where the termination resulted because the employee exercised a legal right or privilege,’ such as the fundamental right to religious exercise.”

The university allegedly violated Rolovich’s rights by never reaching out to him about potential accommodations, according to the appeal.

“An employer’s duty to negotiate possible accommodations ordinarily requires it to take ‘some initial step to reasonably accommodate the religious belief of that employee,’” according to the appeal, which cited Peterson v. Hewlett Packard Co.

Rolovich was never given a chance to negotiate his accommodations, as he never was contacted about potential accommodations following the HRS approving his exemption, according to the appeal.

The appeal also cites WSU’s own religious exemption form, which states, “Washington State University may need . . . [to] discuss reasonable accommodations to WSU’s COVID-19 vaccination requirement. Human Resource Services will reach out to you if additional information is needed to process this request.”

The university had no reason to “give its Director of Athletics more weight than its Environmental Health and Safety Department on this key question,” according to the appeal.

“EH&S has ‘expertise in environmental and occupational health and safety.’ Pat Chun has a bachelor’s degree in journalism and a master’s degree in sports leadership,” according to the appeal.

The appeal argues the university’s decision was not based on science, while citing Dr. Jayanta Bhattacharya, professor of medicine, economics, and health research and policy at Stanford University. 

Bhattacharya was one of the early opponents of lockdowns and has publicly questioned the severity of the COVID-19 virus.

The university cannot use abstract figures, such as loss of donor money, to claim an “undue burden,” according to the appeal 

The decision to accommodate the coach must have had a real, tangible negative effect, whether that be monetary or not. However, the university used non-tangible effects such as the loss of donor money and loss of reputation in its decision, according to the appeal. 

Many of the statements made by the university and members of the university revolved around Rolovich “leading by example” and “sending a message,” according to the appeal. 

The document ends by stating, “The ‘reputational’ damage that WSU has allegedly suffered was self-inflicted, but the reputational damage suffered by Coach Rolovich was caused by the University’s and Mr. Chun’s bad faith actions throughout the entire process.”

This appeal was filed Tuesday, the 15th calendar day following Rolovich’s termination and the last day it could be filed. Chun has 10 days from the time it was filed to decide if the termination is still warranted, Weiler wrote in an email.

If Chun decides to move forward with the termination, Rolovich will no longer receive pay. Currently, he is on paid leave from the university. After that decision, Rolovich will have an additional 15 days to appeal to WSU President Kirk Schulz. Once Schulz makes his decision, that decision is final, Weiler wrote in an email.