Student-Athlete Who Was Sexual Harassment Victim Fails to Show College Was Responsible for Battery

Mar 3, 2017

Student-Athlete Who Was Sexual Harassment Victim Fails to Show College Was Responsible for Battery
A federal judge from the Southern District of Florida has dismissed, in part, the complaint of a student-athlete who sued the Florida International University Board of Trustees (FIU) and others, alleging that she was sexually harassed by the school’s head basketball coach. While ruling for the defendants, the court did leave the door open for the plaintiff to file an amended complaint.
This case arises out of Destini Feagin’s allegations that she was sexually harassed by FIU Head Coach Marlin Chinn while she was a student-athlete attending the University during the 2015-2016 academic year.
The University hired Chinn to be head coach of the basketball team, of which Feagin was a member, in April 2015. Soon after Chinn’s player-coach relationship with Feagin began in June 2015, Chinn began allegedly asking Feagin for details about her love life, including who she was dating and the type of men she was interested in. Chinn started giving Feagin unsolicited and unwanted advice on ways to please men, telling her she needed to be “open-minded,” perform oral sex, give massages, and cook good meals, according to the complaint. Around that time, Chinn announced that Feagin would be team captain and that she would be featured in promotional materials published by the University.
In December 2015, Chinn allegedly began making sexual remarks about Feagin’s body. Also toward the end of 2015, Chinn gave Feagin $600 to pay for remedial academic sessions, and when Feagin thanked him, he responded by implying that he expected his payback to be sexual in nature. A month later, Chinn explicitly told Feagin that he was having sexual fantasies about her and that he wanted to have a sexual relationship with her, according to the complaint. Shortly thereafter, when the team was staying in a hotel for an away game, Chinn tried convincing Feagin to come to his hotel room under the pretense of discussing basketball.
The plaintiff further claimed that Chinn’s unwelcome pursuit of Feagin continued into February 2016. He would make sexual remarks to Feagin, both in conversation and via text message, and would regularly slap and touch her buttocks during basketball games, according to the complaint. On one occasion, when Feagin was alone with Chinn in his office, Chinn hugged her, and then, without her consent, kissed her neck and put his hands on her buttocks and vagina. On another occasion, Chinn allegedly asked Feagin, in the presence of assistant coaches, when she would “let [him] get some of that candy.” After an incident in which Feagin used a teammate’s meal card without permission, Chinn threatened to remove Feagin from the basketball team, telling Feagin that she would have to have sex with him whether she was on the team or not, but that it might be more appropriate if the player-coach relationship was over.
Allegedly fed up with the behavior, Feagin complained to Mark B. Rosenberg, the President of FIU, Julie Berg, the Senior Associate Athletic Director of FIU, and Shirlyon McWhorter, the Title IX Coordinator of FIU, about Chinn’s conduct. The University responded by engaging in a pattern of retaliatory actions against Feagin, including cutting her from the basketball team and excluding her from an end-of-the-season dinner honoring the players, according to the complaint. Meanwhile, Chinn continued coaching the basketball team through the end of the season, at which point he was terminated, but only after news of his sexual harassment was reported in the media.
The plaintiff sued on Oct. 13, 2016, naming Chinn, Rosenberg, Berg, McWhorter, and FIU, as well as Pete Garcia, the athletic director of FIU, and Tiara Malcolm, the assistant coach of the women’s basketball team, as defendants.
Feagin asserted claims of sexual discrimination arising under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Counts I and II) and 42 U.S.C. § 1983 (Count III), as well as common law claims of negligence (Count IV), negligent hiring (Count V), negligent supervision (Count VI), negligent retention (Count VII), intentional infliction of emotional distress (Count VIII), and battery (Count IX). Feagin sought a declaration that the defendants’ conduct violated the United States Constitution, judgment in her favor as to all claims for relief, an award of compensatory, punitive, and exemplary damages, and reasonable attorney’s fees and costs.
Since the assertions, Feagin has voluntarily dismissed without prejudice all defendants except the FIU Board. The FIU Board moved to dismiss on Nov. 14, 2016, arguing dismissal is appropriate regarding all claims except for Counts I and II, which relate to alleged violations of Title IX. In the response filed on Dec. 19, 2016, Feagin voluntarily asked the court to dismiss without prejudice Counts IV, V, VI, VII, and VIII, leaving only the battery count and the Title IX counts.
“Because the FIU Board does not move for dismissal of the Title IX Counts, however, the only question … at this time is whether dismissal is appropriate with regard to the battery count,” wrote the court.
Feagin alleges in the complaint that Chinn committed multiple batteries because he “made uninvited, unauthorized, offensive physical contact with [her] in that he placed his arms, hands and lips on her body.” Further, Feagin claims that the FIU Board is responsible for these alleged batteries “because FIU hired Chinn to be head coach of its women’s basketball team, the offensive physical contact took place on FIU’s campus, and Chinn was ‘acting in his official capacity as head coach’ when the offensive contact took place. The FIU Board argues in its motion and reply that Feagin’s claim must be dismissed because Feagin has failed to allege facts sufficient to hold it liable for Chinn’s conduct under a respondeat superior theory of liability,” wrote the court.
The court agreed with the defendant, writing that in order to adequately allege that FIU is liable as Chinn’s employer, “Feagin must allege facts showing that Chinn’s wrongdoing occurred within the scope of his employment.”
Elaborating, it cited the standard set forth in Resley v. Ritz-Carlton Hotel Co., 989 F. Supp. 1442, 1448 (M.D. Fla. 1997) (quoting Sussman v. Fla. E. Coast Props., Inc., 557 So. 2d 74, 75-76 (Fla. 3d DCA 1990)):
“The conduct of an employee is within the scope of his employment, for the purposes of determining the employer’s vicarious liability to third persons injured by the employee, only if (1) the conduct is of the kind he was employed to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part by a purpose to serve the master.”
The appeals court continued, writing that Feagin’s allegations “satisfy the second element set forth above. With regard to this element, Feagin claims that much of Chinn’s alleged conduct occurred within the time and space limits required by his job as head coach. For example, Feagin alleges that when she was alone with Chinn in his office, Chinn kissed her neck and grabbed her inappropriately without her consent. She also alleges that Chinn would “routinely” touch her inappropriately during University basketball games. A substantial amount of Chinn’s alleged physical contact therefore took place on campus and during working hours.
“However, the Court finds that Feagin’s allegations fail to satisfy the first and third elements.”
Addressing the third element, Feagin argues that Chinn’s alleged batteries were activated at least in part by a purpose to serve FIU because certain acts—such as Chinn’s use of Feagin’s face and likeness on promotional materials and his loan of $600 to pay for academic sessions—were “in connection with the sexual harassment by Chinn and obviously in support of his attempts to influence and/or force Feagin to allow Chinn’s unwanted sexual advances.”
“But even if these specific acts had the effect of providing FIU with some incidental benefit, for example by helping to draw crowds at basketball games or preserving Feagin’s academic eligibility to participate in the basketball program, it does not follow that Chinn’s alleged batteries—which are based on alleged acts of touching independent from these examples—were motivated, even in part, by a desire to advance FIU’s interests.” See Elders v. United Methodist Church, 793 So. 2d 1038, 1041 (Fla. 3d DCA 2001)
With regard to the first element, Feagin “has not alleged, much less plausibly shown, that Chinn’s conduct was ‘of the kind he was employed to perform.’ In her response, Feagin characterizes Chinn’s repeated, unwanted advances, including his alleged groping and touching, as a reflection of the ‘manner in which Chinn performed his job duty.’ The fact that Chinn allegedly committed some of these acts while he was coaching may speak to the second element, which as the Court notes above has been satisfied, but it does not make it plausible that FIU hired Chinn for the purpose of engaging in this type of conduct—or even that it was a natural consequence of the activities that Chinn was hired to carry out.” See City of Green Grove Springs v. Donaldson, 348 F.2d 197, 202 (5th Cir. 1965)7 (quoting Weiss v. Jacobson, 62 So. 2d 904, 906 (Fla. 1953)).
In sum, the appeals court found that Feagin has “failed to allege facts that are sufficient to plausibly show that Chinn was acting within the scope of his employment when he committed the alleged batteries. Feagin has therefore failed to allege facts that are sufficient to hold the FIU Board vicariously liable for the batteries.”
Destini Feagin v. Marlin Chinn, in his official capacity as former Head Coach of the Florida International University Women’s Basketball Team, et al.; S.D. Fla.; CASE NO.: 16-CV-24346-PCH, 2017 U.S. Dist. LEXIS 5414; 1/12/17
Attorneys of Record: (for plaintiff) Elizabeth Louise Parker, LEAD ATTORNEY, The Law Office of Elizabeth Parker, P.A., West Palm Beach, FL; Stuart N. Kaplan, Kaplan Sconzo & Parker, P. A., Palm Beach Gardens, FL. (for defendant FIU) Eric David Isicoff, Teresa Ragatz, LEAD ATTORNEYS, Christopher Michael Yannuzzi, Isicoff, Ragatz & Koenigsberg, Miami, FL.


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