Court Finds Immunity Shields CMU, Athletic Department Officials

Nov 6, 2009

A federal judge from the Eastern District of Michigan has dismissed a lawsuit brought by a student-athlete, who claimed she was run off the Central Michigan University basketball team because she was heterosexual.
In so ruling, the court found that the school and several individual defendants were shielded by governmental immunity protections.
Plaintiff Brooke Heike was a decorated high school basketball player, who on November 3, 2005, was offered a scholarship to play basketball at CMU by then-Athletics Director Herb Deromedi. The letter, noted the court, stated that renewal of the athletic grant for subsequent years was “subject to the conditions listed on the MAC [Mid America Conference] and National Letters of Intent,” which the plaintiff was required to sign.
Heike began competing on the women’s basketball team during the 2006-07 season. Immediately after that season came to a close, the incumbent coach was fired, ushering in a new coach — Sue Guevara.
Previously, Coach Guevara had been the head coach of the women’s basketball team at the University of Michigan and an assistant coach at Auburn University. Despite the credentials, the team struggled the next season, winning only six games.
In April 2007, before Coach Guevara had witnessed Heike practice, Heike alleged that she met with Coach Guevara, who told the plaintiff that she did not want the plaintiff to wear make-up. She further alleged that Coach Guevara subjected her to unwelcome harassment and discipline throughout the 2007-08 season, such as repeatedly telling the plaintiff that she was not her “type” of person. The plaintiff alleged that Coach Guevara’s comments led her to believe that Coach Guevara did not consider her to be her “type” of person because she identified herself as heterosexual and wore make-up, which the plaintiff perceived that Coach Guevara deemed to be “an unacceptable heterosexual behavior.” The plaintiff alleged that Coach Guevara repeatedly attempted to force her to transfer to another college or university, including by directing Assistant Coach Bill Ferrara to tell her that she should transfer to Saginaw Valley State University.
After a confrontation with the coach at practice allegedly made her physically ill, she was examined by a medical doctor, who instructed by note that she not attend practice on December 15, 2007, because of her illness. Despite receiving the doctor’s note as to the plaintiff’s illness, Coach Guevara told the assistant coaches and team members that she had kicked the plaintiff out of practice for another day. Immediately following this incident, the plaintiff requested additional assistance with her work-outs and training. The plaintiff alleged that she never received additional assistance, even though assistance was provided to the other players.
On March 13, 2008, the plaintiff alleged that Coach Guevara told her that she was eliminating her from the team, and stripping her of her scholarship. Later, Coach Guevara allegedly told the team that the plaintiff had been removed from the team because she was “unhappy,” and not because of any deficiency on the part of the plaintiff or anything having to do with the plaintiff’s ability or capacity to improve her skills.
On April 7, 2008, the plaintiff submitted a written request for a hearing and set forth the reasons why she believed the defendants had unfairly deprived her of her scholarship and education.
An appeal hearing was scheduled for June 11, 2008 in order to determine “if the action to not renew Ms. Heike’s athletics aid for the 2008-2009 academic year was a substantial injustice.”
Meanwhile, the coach began building a case for why the plaintiff’s sub-par basketball skills and lack of willingness to work were the impetus for the decision. Specifically, the coach wrote in a letter that the plaintiff “consistently struggles to understand key basketball concepts. This was reinforced by the secondary role that she played in all basketball practice activities.” Coach Guevara further wrote, “What is most disconcerting is that Brooke never appeared to strike for success,” that “even though Brooke was failing to meet these expectations, she did not seek additional help or assistance,” and “she appeared to be very satisfied with her deficiencies.”
In comparison, Coach Guevara wrote, “A number of those members of the team who were underachieving throughout the year demanded additional time from coaches to help them with the process of improvement. These individuals continue to be members of the team.” Coach Guevara further wrote that Plaintiff was “kicked out of practice” on both December 14 and 15, 2007, “for lack of effort, poor body language, and bad attitude overall . . . this stemmed from her consistently missing sprint times and not grasping basic concepts essential to the completion of conditioning drills.”
On June 11, 2008, the plaintiff appeared before the appeals committee at the CMU Office of Scholarship and Financial Aid for a hearing, which the plaintiff claimed was contentious. She was denied relief.
On November 12, 2008, the plaintiff filed a nine-count complaint, alleging numerous federal claims pursuant to 42 U.S.C. § 1983, and state-law claims against the defendants Central Michigan University Board of Trustees, Guevara, Athletic Director Dave Heeke, and Assistant Director in the Office of Scholarships and Financial Aid Patricia Pickler,.
The plaintiff’s claims are addressed in the following counts: (1) violations of procedural and substantive due process pursuant to the Fourteenth Amendment to the U.S. Constitution; (2) violations of the Equal Protection Clause to the U.S. Constitution; (3) breach of contract or implied contract; (4) defamation; (5) tortious interference with a contract or advantageous business relationship or expectancy against the individual Defendants; (6) intentional infliction of emotional distress; (7) violations of certain provisions of the Michigan Elliot-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws §§ 37.2101, et seq.; (8) negligent hiring of Coach Guevara against CMU and AD Heeke; and (9) negligent supervision of Coach Guevara against CMU and AD Heeke.
The defendants moved to dismiss the claim, pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim
The defendants advanced six main arguments in their motion to dismiss. First, they argued that the plaintiff’s claims against CMU should be dismissed because CMU is an arm of the state and claims against it are barred by the Eleventh Amendment. Second, they argued that the plaintiff’s claims against Coach Guevara, AD Heeke, and Pickler in their official capacities should be dismissed because the claims are barred by the Eleventh Amendment to the extent that they are based on state law or are based on federal law and seek retrospective relief. Third, they argued that the plaintiff’s § 1983 claims seeking monetary liability against CMU and Coach Guevara, AD Heeke, and Pickler in their official capacities should be dismissed because CMU and its officials are not “persons” within the meaning of § 1983. Fourth, they argued that the plaintiff’s breach of contract claim against CMU should be dismissed based on the statute of frauds, as an alternative to dismissal based on Eleventh Amendment immunity. Fifth, they argued that the plaintiff’s common law tort claims against CMU and the negligence claims against AD Heeke should be dismissed because they are entitled to governmental immunity. Sixth, and finally, they argued that the plaintiff’s defamation claim should be dismissed against all defendants because the plaintiff has failed to plead the claim with sufficient specificity.
It didn’t take along for the court to determine if the defendants’ arguments had merit.
The plaintiff “does not allege any claims under Title VI, the Rehabilitation Act, Title IX, the ADA, or ‘any other Federal statute prohibiting discrimination.’ Rather, the plaintiff alleges ‘discriminatory treatment’ in violation of the Fourteenth Amendment. While ‘Congress may authorize private suits against nonconsenting States pursuant to its § 5 [of the Fourteenth Amendment] enforcement power,’ it must do so through legislation. See Alden v. Maine, 527 U.S. 706, 756, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999). It is not the Fourteenth Amendment itself which abrogates a state’s immunity, but the legislation enacted pursuant to it. Thus, the plaintiff’s argument that Congress has abrogated CMU’s sovereign immunity as to the plaintiff’s federal constitutional claims through § 2000d-7(a) (1) is unpersuasive.
“Likewise, the plaintiff’s argument that CMU has waived its sovereign immunity through participation in this litigation is unpersuasive. Plaintiff asserts that CMU did not file a motion to dismiss soon after the complaint was filed in February 2009, filed an answer, and has participated in discovery, including depositions and document requests. However, CMU did assert sovereign immunity as an affirmative defense at the time that it filed its answer to the complaint. Additionally, there are other individuals named as Defendants in this case, who were entitled to proceed with discovery, pending resolution of the question of sovereign immunity. See Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 547, 122 S. Ct. 999, 152 L. Ed. 2d 27 (2002) (affirming the requirement that consent be “unequivocally expressed”). Based on the above, all of the plaintiff’s claims against CMU will be dismissed on the basis of sovereign immunity.”
Brooke Elizabeth Heike v. Sue Guevara, Dave Heeke, Patricia Pickler, Central Michigan University Board of Trustees; E.D. Mich.; Case Number 09-10427-BC, 2009 U.S. Dist. LEXIS 79140; 9/2/09
Attorneys of Record: (for plaintiff) Cindy R. Victor, Victor Firm, Sterling Heights, MI. (for defendants): Michael E. Cavanaugh, Fraser, Trebilcock, Lansing, MI.


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