Athlete’s Sexual Harassment Can Continue on Multiple Fronts

Apr 10, 2009

The sexual harassment claim of a female student athlete at Carl Albert State College, who was allegedly raped by an assistant coach, has survived, mostly in tact, a motion to dismiss brought by the school and several school officials.
The plaintiff, identified as M. Mills, transferred to the college in the fall of 2006 to attend school and play basketball. At about the same time, defendant Jack Washington was hired as an assistant basketball coach, Washington was living in the boys’ dorm as part of his compensation. Washington’s stepdaughter was also a member of the Carl Albert basketball team.
On September 8, 2006, Washington and Miles both attended a student party in the boys’ dorm. At the party, Washington gave Miles a drink containing Red Bull and gin and Miles claims she started feeling funny as she drank it. Later that night, Washington allegedly raped her in his dorm room.
The following day Miles told her roommate about the rape and the two decided they would tell the head basketball coach, defendant Jeff Tadtman, after practice the next day.
On September 10, Miles told Tadtman about the rape. Tadtman immediately confronted Washington about it and Washington denied the allegations. Tadtman told Miles that if she wanted to report the rape “it would be trouble for her.” Tadtman informed Miles that he would address the situation in the morning.
The next morning, Tadtman reported the incident to defendant Mike St. John, Carl Albert’s athletic director. St. John then reported the incident to defendant Phyllis Philippart, the Vice President of Student Affairs.
Later that day, Washington was fired for drinking alcohol with students. Washington told some of the students about his termination, which caused several students to become angry at Miles. That evening a female and a male basketball player came to Miles’ dorm room. The female player told Miles that “if she was just lying to ruin someone’s life, she was going to ‘beat her down.’” The housing director made the two students leave. Later the same evening, seven players from the women’s basketball team went to Miles’ dorm room and began to beat on the door, trying to break it down. The players were screaming threats at Miles. Once the players were finally forced to leave by Tadtman and campus police, the housing director recommended that Miles and her roommate leave for the weekend and come back once the other players have had a chance to “calm down.”
The next day, Miles received a text message from another player which stated that Washington’s stepdaughter and other members of the team still “want to kill you.” Miles never returned to Carl Albert.
On October 4, 2006, Miles obtained a protective order against three girls, including Washington’s stepdaughter. At the hearing on the protective order, Tadtman and St. John accompanied the girls accused of making the threats and throughout the proceeding expressed their disgust and displeasure with Miles and her mother.
Miles ultimately sued Washington, Tadtman, St. John, Philippart, and Carl Albert alleging ten (10) different causes action. Those claims include: 1) Title IX action against Carl Albert for being deliberately indifferent to the harassment Miles experienced pursuant to 20 U.S.C. § 1681, seeking actual and punitive damages against Carl Albert; 2) Title IX action against Carl Albert for retaliating against Miles for reporting the rape pursuant to 20 U.S.C. § 1681, seeking actual and punitive damages against Carl Albert; 3) Deprivation of her rights under the Equal Protection Clause of the Fourteenth Amendment against all Defendants in their official and individual capacity for being deliberately indifferent to the sexual harassment Miles allegedly suffered and allowing a hostile environment to exist, pursuant to 42 U.S.C. § 1983; 4) Deprivation of her First Amendment Right to Free Speech against all Defendants in their official and individual capacity for retaliating against Miles for reporting the rape, pursuant to 42 U.S.C. § 1983; 5) Governmental Tort Claim against Carl Albert for negligently hiring Washington; 6) Governmental Tort Claim against Carl Albert for negligently supervising Washington; 7) Governmental Tort Claim against Carl Albert for negligently retaining Washington; 8) Governmental Tort Claim against Carl Albert for negligent infliction of emotional distress; 9) Intentional Infliction of Emotional Distress against Washington, Tadtman, and St. John, individually; and 10) Breach of implied contract against Carl Albert.
Defendants filed a Partial Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Defendants allege that Miles has not stated a claim upon which relief can be granted in regard to the Title IX sexual harassment claim, the Title IX retaliation claim, the § 1983 claims against all Defendants in their official capacity, the § 1983 claim against Tadtman, Philippart, and St. John in their individual capacity, the negligence claim against Carl Albert, the negligent infliction of emotional distress claim, and the intentional infliction of emotional distress claim against Tadtman and St. John.
Beginning its analysis with the Title IX Sexual Harassment Claim, the court disputed the defendants’ argument that the plaintiff had made “no allegations that Carl Albert had actual notice of Washington’s behavior before he committed the rape and that Plaintiff cannot establish that Carl Albert acted with deliberate indifference.” In fact, noted the court, the plaintiff “alleges that Tadtman and others at the school knew that Washington was partying with female students on campus and inappropriately interacting with female students prior to his rape of the plaintiff. Additionally, the plaintiff alleges that Carl Albert created an atmosphere that allowed Washington to live, party, and inappropriately interact with students, and eventually this atmosphere led to her rape. See Simpson v. University of Colorado Boulder, 500 F.3d 1170 (10th Cir. 2007) (finding that it can be deliberate indifference if a school fails to provide adequate training that is obviously necessary for the implementation of a program and that an official policy of the school can result from a situation where the school exercises significant control over the harasser and the environment in which the harassment occurs). Based on the allegations contained in the plaintiff’s complaint and response brief, she has raised her right to relief above the speculative level and has stated a claim that is plausible on its face.”
As for the claim that Carl Albert retaliated against the plaintiff for reporting the sexual harassment, the court sided with Carl Albert to the extent that “the actions of the students who threatened the plaintiff after she reported the rape are insufficient to establish that Carl Albert took some form of adverse action toward the plaintiff. The students are not agents of the school and their actions can not be considered the actions of the school. See Ross v. Corporation of Mercer University, 506 F.Supp.2d 1325, 1361 (M.D. Ga. March 30, 2007).”
“However, Carl Albert can be liable for retaliation under Title IX if it orchestrated the harassment by the students or knew of the harassment and acquiesced in it in such a manner as to condone or encourage the harassment. See Gunnell v. Utah, 152 F.3d 1253, 1265 (10th Cir. 1998).” Along those lines, the court highlighted the plaintiff’s allegation that the defendants “warned her that going forward with her report would be trouble, knew of the harassment that occurred in the plaintiff’s dorm, did not take sufficient actions to prevent the harassment, and accompanied the harassing students to court and supported the students while acting disgusted with the plaintiff during the protective order hearing. These allegations are enough for the court to find that it is plausible that the defendants could be found to have condoned or orchestrated the student harassment of the plaintiff.”
While the plaintiff voluntarily dismissed her third and fourth cause of action pursuant to 42 U.S.C. § 1983 as they relate to the defendants in their official capacities, the plaintiff left in tact two separate § 1983 claims against the defendants in their individual capacity. On these claims, the court visited the defendants’ argument that they were entitled to qualified immunity.
The fact that no discovery had taken placed weighed heavily in its analysis. “The court does not have a factual record to rely on in making its determination,” it wrote. “Because the specific facts of this case are crucial to the court’s ability to make a legal determination as to whether the defendants violated clearly established law, the court finds it premature to rule on the qualified immunity issue until the facts are sufficiently established. To be clear, the Court is not finally and conclusively denying Defendants’ entitlement to qualified immunity. Defendant is free to re-urge the issue in a motion for summary judgment, however, the Court cannot make a proper ruling on the issue at this stage of the proceedings.”
The plaintiff’s negligence supervision claim also survived the motion to dismiss as the court restated a previous finding on another of the plaintiff’s claims that she had sufficiently alleged that Carl Albert had actual knowledge of Washington’s tendencies.”
The court found for the defendant on the negligent infliction of emotional distress, since no independent cause of action for negligent infliction of emotional distress exists under Oklahoma law.
Finally, it sided with the plaintiff on her a claim for negligent infliction of emotional distress against Carl Albert, since her allegations rise above “the mere speculative level.”
M. Miles, Plaintiff, v. Jack Washington et al.; E.D. Oklahoma; Case No. CIV-08-166-JHP, 2009 U.S. Dist. LEXIS 7300; 2/2/09
Attorneys of Record: (for plaintiff) Phyllis L. Walta, LEAD ATTORNEY, Walta & Walta, Hennessey, OK. (for defendants) Kindanne C. Jones, Office of the Attorney General (OKC – Litigation), Oklahoma City, OK.


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