By Courtney L. Flowers and Erica J. Zonder
Former head men’s basketball coach David Pasiak filed a lawsuit against Onondaga Community College (OCC) alleging defamation and unlawful termination. Pasiak, who served as the head coach from 2000-15 and as the Associate Athletic Director at OCC, alleges he was fired in retaliation for his refusal to recruit players based on race.
More specifically the lawsuit filed in the United States District Court of the Northern District of New York alleges the Plaintiff was questioned by members of the OCC athletic administration regarding his “conduct” in reference to minority player recruitment. Plaintiff Pasiak claims the specifics surrounding his “conduct” were never disclosed outside of citing an unfriendly environment for minority players and lack of diversity on the OCC Men’s Basketball Team.
Moreover, Pasiak alleges he was given a 30 percent minority quota mandate for players on the 2015-16 men’s basketball team by Michael Borsz, OCC Athletic Director. The lawsuit alleges this quota violates the Onondaga Community College and National Junior College Athletic Association policies, as well as state and federal laws, and it is for these reasons the Plaintiff defied this mandate.
In addition, the Plaintiff claims that OCC’s comments about Plaintiff’s “conduct” were defamatory. Specifically, Plaintiff raises seven (7) Causes of Action against Defendants OCC, Kathleen Crabill (President of OCC), and David Murphy (Senior Vice President of College Affiliated Enterprises & Asset Management at OCC).
Onondaga Community College
Onondaga Community College is located in Syracuse, New York. The two-year college has made strides to publicly declare “its commitment to diversity and inclusion” through its Diversity Master Plan. The 2013-17 Master Plan states “The College seeks to be an inclusive educational community that values differences and provides individuals with the opportunity to explore and discover their potential to advance the mission of the college and enhance overall institutional effectiveness. Moreover, goal number 1 of the Diversity Master Plan cites “Improve the enrollment and persistence of students (i.e., degree and certificate seekers) from diverse ethnic and/or underserved backgrounds” as a strategic goal (“Onondaga”, 2013, p.9). This goal could possibly be used to explain the “minority quota” directive mandated by the OCC athletic department.
Also, arguably substantial to this case was the lack of ethnic diversity of the OCC student population in 2015. According to the OCC Quick Facts, during the Fall 2015 semester, almost half of the student population identified as White at 48.9 percent. The second largest ethnic student population was African American at 12.5 percent. In addition, the Hispanic student population was 4.7 percent, the Asian student population was 1.2 percent, the American Indian or Alaska Native 1.2 percent, and the Native Hawaiian or Pacific Islander student enrollment was 1.0 percent.
The Plaintiff’s Specific Claims
First Cause of Action — Fourteenth Amendment Equal Protection and 42 U.S.C. §1983
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution requires that states guarantee the same rights, privileges, and protections to all citizens. According to the Plaintiffs’ Complaint, OCC is operated under a Charter granted by the Regents of the New York State Department of Education (Pasiak v. Onondaga Community College, 2016) therefore making OCC a state actor. The lawsuit claims that Defendants “acted under color of law with callous disregard of Plaintiff’s rights by implementing and enforcing diversity and non-discrimination laws and policies in a unlawful manner by selectively treating Plaintiff differently than all other coaches” (Pasiak v. Onondaga Community College, 2016, p. 8). According to Plaintiff, he was the only one of 17 coaches who was mandated to create a more diverse team. Plaintiff contends he was told to have thirty percent (30%) minority students on the 2015-2016 Men’s Basketball Team. Plaintiff claims that on more than one occasion he informed the Defendants that he would not use race as a stand-alone recruiting criterion and further, that nothing in Defendant’s Diversity Master Plan specifically addresses or guides any of the 17 coaches on how to implement the six goals of said plan and the 30 percent minority quota was requested of him alone.
Second Cause of Action — Retaliation in Violation of the First Amendment and 42 U.S.C. §1983
Plaintiff claims that his objection to recruiting athletes solely based upon race and quotas was constitutionally protected speech and a matter of public concern, and therefore Defendants were in violation of Plaintiff’s rights under the First Amendment to the U.S. Constitution. Plaintiff claims that to NOT refuse to recruit based on race could actually put the College in jeopardy of violating both its policies, as well as state and federal laws. And further, Plaintiff was terminated for expressing such refusal.
Third Cause of Action — Retaliation Under Title VI of the Civil Rights Act of 1964
Title VI prevents discrimination based on race, color, or national origin by programs or activities that receive federal financial assistance. Most institutions of higher learning receive some sort of federal funds and Plaintiff specifically claims that OCC receives federal monies and further retaliated against him for his refusal to discriminate. Plaintiff “opposed the implementation of the mandates of Defendants which required him to discriminate against individuals based upon their race” (Pasiak v. Onondaga Community College, 2016, p. 9).
Fourth Cause of Action — Retaliation Under 42 U.S.C. §1981
42 U.S.C. §1981 prohibits employment discrimination based on race. In many ways, it overlaps with Title VII, but there are differences, including allowing the Plaintiff to bring the claim without filing an EEOC charge. Plaintiff claims that his termination was the result of retaliation for refusing to recruit players based on race and/or quotas and also for his opposition to Defendants’ unlawful policies.
Causes of Action Five, Six, and Seven — Defamation
Five — Defamation: Plaintiff claims that the Defendants defamed him by falsely stating that there was an investigation being conducted into Plaintiff’s “conduct” (Pasiak v. Onondaga Community College, 2016, p. 11). That statement was sent to the Syracuse Post Standard, Syracuse.com, and other media outlets. Defamation requires the making of untrue statements about another person that damages that person’s reputation. Plaintiff alleges that Defendant had already decided to terminate his employment so therefore there was no conduct being investigated, and further that “as a result of the publishing of the false statement, Plaintiff was exposed to public contempt, ridicule and disgrace in his profession” (Pasiak v. Onondaga Community College, 2016, p. 11). And, Plaintiff was therefore unable to find alternative employment.
Six – Defamation Per Se: Some types of defamatory statements are considered so damaging that they are considered to be defamatory on their face. Historically, statements about a person having a loathsome disease or that a person was unchaste were examples of this type of statement. Another such example of defamation per se is the suggestion that a person acts in a manner that is incompatible with his business, trade, or profession. Plaintiff alleges that the intentional publishing of the false statement suggested unprofessional conduct on his behalf.
Seven — Defamation by Implication Per Se: The Plaintiff claims that Defendant’s statement was made intentionally and with malice (a standard required for public figures) and that using the words “allegations” and “concerning (Plaintiff’s) conduct” implied that Plaintiff committed acts and conducted himself in a manner that suggested he was incompetent or unfit to perform his job (Pasiak v. Onondaga Community College, 2016, p. 13). Therefore, by implication, the statement gave a false suggestion and impression about the Plaintiff.
The Plaintiff seeks damages for all seven counts. For Causes of Action 1-4, Plaintiff asks for damages including lost wages, including, but not limited to, front pay and back pay, emotional distress, pain and suffering, compensatory and punitive damages and attorneys’ fees pursuant to 42 U.S.C. §1988. For the Fifth Cause of Action, Plaintiff further seeks damages for back wages, pain and suffering and compensatory damages, and further seeks compensatory and punitive damages for Causes of Action Six and Seven.
Pasiak’s Current Employment Status
Currently David Pasiak serves as the Assistant Men’s Basketball Coach at Morrisville State College (MSC). He also holds the position of Assistant Director of The Collegiate Science & Technology Program (CSTEP) for MSC. CSTEP is a STEM based (Science Technology Engineering Math) academic enrichment program at MSC.
Courtney L. Flowers, Ph.D. is a Professor of Sport Management at Texas Southern University. Her scholarship encompasses Title IX, racial and gender inequality in the sport of Golf, and risk management policies and practices of Historically Black Colleges and Universities athletic departments.
Erica J. Zonder, J.D. is an Assistant Professor of Sport Management at Adrian College. Her research interests include Title IX, college athletics, and labor issues in professional sport.
O’Brien, J. (2016, March 15). OCC removes men’s basketball coach amid investigation into misconduct allegations. Syracuse.com. Retrieved from http://www.syracuse.com/news/index.ssf/2015/12/occ_fires_mens_basketball_coach_amid_investigation_into_misconduct_allegations.html
Onondaga Community College (2013). 2013-17 Diversity Master Plan. Retrieved from http://www.sunyocc.edu/index.aspx?menu=91&collside=489&id=929
Pasiak v. Onondaga Community College, Kathleen Crabill and David Murphy, No 6:16-cv-1376, complaint. (N.D.N.Y. November 17, 2016). Retrieved from nylawyer.nylj.com