Court Leaves Claim Related to Tulane Football Player Hanging by a Thread

Jul 21, 2017

A federal judge from the Eastern District of Louisiana has handed another legal defeat to a former Tulane University football player, who alleged that the school and several individual defendants treated him unfairly when they ran him off the football team.
In considering the defendants’ motions to dismiss, the court denied the motion with respect to one of the defamation claims against an individual defendant, granting the motion for all others.
Plaintiff Brandon Purcell enrolled at Tulane University in the fall of 2013, and walked on to the football team as a kicker. Purcell claims that he suffers from a learning disability necessitating certain academic accommodations, including double time to take tests, sound-reduced environment, and a note taker. He also alleges that due to his disability, he has better concentration in the morning. Accordingly, his athletics academic advisor, Ruben Dupree, approved him for 8:00 a.m. classes. This represented a departure from the general rule that Tulane football players should not take morning classes.
In the spring of 2015, Purcell was taking 8:00 a.m. classes five days a week. Nevertheless, he was scheduled for a training session from 7:00 a.m. to 8:30 a.m. He states that he would attend the initial portion of the workout, leave for his 8:00 a.m. classes and return to work with his coach after class to complete the missed portion of the workout. On March 4, 2015, Purcell avers that he was called into the office of special teams coach Doug Lichtenberger and was dismissed from the football team. He alleges that Coach Lichtenberger told him that he was a “hindrance” and a “bad example for the team.” Purcell then contacted Athletic Director Rick Dickson and Tulane Head Football Coach Curtis Johnson complaining of discrimination, hostile learning environment, retaliation, and intentional infliction of emotional distress. He alleged that Lichtenberger improperly used Purcell as an example of bad behavior, inciting other members of the football team to harass him and causing emotional distress.
Later that month, Purcell met with Assistant Athletic Director Barbara Burke, who allegedly indicated that he had been removed from the team because there were too many kickers. The plaintiff alleged that the reason is pretextual, claiming that he outperformed other kickers who remained on the team. Purcell ultimately met with Dickson, and demanded an explanation why he was removed from the team, according to the court. Dickson declined to intervene in the matter. He then met with Coach Johnson, Coach Rob Phillips, Coach Byron Ellis, and Coach Wayne Cordova to discuss the matter. The plaintiff alleged that they continued to assert pretextual reasons for his removal from the team.
After this meeting, Purcell continued to train with the team. However, he alleged, he suffered increased abuse and retaliation. He also alleged that his former friends and teammates participated in the abuse, making both physical threats and anti-Semitic comments toward him. The plaintiff then filed a complaint with Wendy Stark of Tulane’s Office of Institutional Equity. Due to the reported increased retaliation, Stark began an independent investigation of the situation. He alleged that Stark failed to maintain confidentiality and participated in the conspiracy and cover up of the disability discrimination, hostile learning environment, retaliation, defamation, and intentional infliction of mental distress.
The situation got worse before it got better, leading to the filing of a lawsuit, brought pursuant to the Americans with Disabilities Act, the Rehabilitation Act, and Louisiana state law against Tulane University and, in some cases, more than a dozen individual defendants.
The defendants moved to dismiss the various claims, pursuant to Federal Rule of Civil Procedure 12(b)6, or the failure to properly state a claim. The court granted the motion, but the [delete] left the door open for the plaintiff to re-file his complaint.
After the plaintiff refiled his claim, the defendants again moved to dismiss.
In its analysis, the court first considered the claims brought under Louisiana Civil Code article 2315 for defamation, and intentional infliction of emotional distress, and negligence.
Specifically, the plaintiff alleged that the statements by Coach Lichtenberger, Coach Ellis, Coach Hymel, and his former teammates were defamatory. The Court will address each defendant separately.
With regard to Lichtenberger, the plaintiff alleged that he defamed Purcell by using him as an example of a poor player, telling his teammates that he did not put in as much work as other players, and telling them that he thought Purcell was the worst kicker on the team. The plaintiff also alleged that Lichtenberger stated that he did not believe that Purcell was disabled and that he required proof. “These statements are Lichtenberger’s subjective opinions and beliefs and are not defamatory,” wrote the court in granting the defendant’s motion to dismiss with prejudice.
With regard to Ellis, the plaintiff alleged that he defamed him when he told other players on the team that Purcell had emailed the police to investigate them. Ellis was aware that it was not Purcell who had contacted the police because he was present when they were contacted by a third party, according to the amended complaint. This was a key fact in the court’s decision to deny the defendant’s motion to dismiss.
The court went on to dismiss the claims against Hymel and the plaintiff’s teammates, finding that the arguments did not rise to the same level as the argument against Ellis.
In dismissing the plaintiff’s claim for intentional infliction of emotion distress, the court found that he failed to show that the defendants’ conduct “was sufficiently outrageous” and crossed the required threshold. Similarly, it found that the negligence claims “are not actionable under a negligence theory.”
Brandon Purcell, et al. v. Tulane University of Louisiana, et al.; E.D. La.; Civil Action NO: 16-1834, 2017 U.S. Dist. LEXIS 80903; 5/26/17
Attorneys of Record: (for plaintiffs) Wanda Anderson Davis, LEAD ATTORNEY, Leefe, Gibbs, Sullivan, Dupre & Aldous, Metairie, LA. (for defendants) Maria Nan Alessandra, LEAD ATTORNEY, Kim M. Boyle, Phelps Dunbar, LLP (New Orleans), New Orleans, LA.; Wanda Anderson Davis, LEAD ATTORNEY, Leefe, Gibbs, Sullivan, Dupre & Aldous, Metairie, LA.; Ron Anthony Austin, LEAD ATTORNEY, Jeffrey Green, Austin & Associates, LLC, Harvey, LA.; Carl T. Conrad, LEAD ATTORNEY, Aldric C. Poirier, Jr., Blue Williams, LLP (Mandeville), Mandeville, LA.; David K. Groome, Jr., LEAD ATTORNEY, Denia Sylve Aiyegbusi, Deutsch Kerrigan LLP (New Orleans), New Orleans, LA.; Jeffrey Scott Loeb, LEAD ATTORNEY, Hilliard F. Kelly, III, Loeb Law Firm (Mandeville), Mandeville, LA.


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