A federal judge has given new life to a defamation claim brought by a student athlete against a coach, who allegedly ostracized the student athlete from the Central Michigan University basketball team because she was heterosexual.
While the court gave plaintiff Brooke Heike a second chance against the coach, it dismissed with prejudice Heike’s defamation claims against Athletic Director Dave Heeke and an assistant AD, finding that the complaint was not alleged with the requisite specificity. It also dismissed Heike’s negligent hiring and supervision claims against Heeke.
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.
Under Guevara, the team struggled the next season, winning only six games.
In April 2007, before Guevara had witnessed Heike practice, Heike alleged that she met with Guevara, who told the plaintiff that she did not want the plaintiff to wear make-up. She further alleged that 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 Guevara’s comments led her to believe that 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 Guevara deemed to be “an unacceptable heterosexual behavior.” The plaintiff alleged that Guevara repeatedly attempted to force her to transfer to another college or 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. Despite the note, Guevara told the assistant coaches and team members that she had kicked the plaintiff out of practice.
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.” Guevara further wrote, “What is most disconcerting is that Brooke never appeared to strive 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, 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.” 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, Heeke, and Assistant Director in the Office of Scholarships and Financial Aid Patricia Pickler,.
Many of those claims were dismissed in a previous opinion (summarized in SLA Vol. 6, Iss. 20). Some remained, such as the defamation claims against Guevara, Heeke and Pickler and the negligent hiring and supervision claims against Heeke.
Taking the latter first, the court reviewed the plaintiff’s assertion that Heeke should have “investigated Guevara’s background, including, but not limited to, the fact that there was a history of poor interpersonal relationships among Guevara and the players on the women’s basketball team at the University of Michigan during the time Guevara was head coach of that program; and the fact that six players left the women’s basketball team at the University of Michigan during the seven seasons that Guevara was head coach of that program, each departing player citing poor communication on the part of Guevara or Guevara’s invasions into her personal life (such as being upset because she wore make-up or tight clothing or otherwise acted in a feminine way) as the reasons for her leaving the team; and the fact that Guevara and the University of Michigan had been sued by an assistant coach because of Guevara’s behavior and actions.”
She also alleged in her claim of negligent supervision, that Heeke “failed to investigate, or failed to adequately investigate, or was negligent in investigating, the plaintiff’s complaints that Guevara discriminated against her and unlawfully harassed her because of her race and color and sexual preference and deprived her of her federally-protected constitutional rights.”
The plaintiff further alleged that Heeke “had actual knowledge, or should have known, that Guevara was discriminating against plaintiff and unlawfully harassing plaintiff on the basis of her race and color and sexual preference, and depriving plaintiff of her federally-protected constitutional rights.”
The court found, however, that the plaintiff failed to show “gross negligence” in hiring and that Heeke’s conduct did not amount to “grossly negligent” supervision. Thus, she failed to get past the hurdle of governmental immunity, and her claims were dismissed with prejudice.
Turning to the defamation claims against Heeke and Pickler, the court wrote that the plaintiff was expected to “specifically identify defamatory statements” made by Heeke or Pickler. On this point, she failed. “While she is entitled to discovery on her causes of action that survive the defendants’ motion to dismiss,” wrote the court, “she is not entitled to discovery on her defamation claims that are not plead with sufficient specificity.”
Turning to Guevara’s alleged defamatory statements, the court sided with the plaintiff.
“The Court is not able to determine as a matter of law that Coach Guevara’s alleged statements to the appeals committee are not capable of being proved true or false,” wrote the court. “Significantly, the plaintiff has alleged the existence of statistics that would prove Coach Guevara’s alleged statements to be false and Coach Guevara’s alleged statements refer to ‘measurable categories.’ Additionally, it is not apparent from the context of the plaintiff’s complaint that Coach Guevara’s statements, such as that the plaintiff never sought additional assistance, was meant to be hyperbolic, rather than to assert that the plaintiff never sought additional assistance as a matter of fact. For these reasons, the defendant is not entitled to dismissal of the plaintiff’s defamation claims against Coach Guevara.”
Brooke Elizabeth Heike v. Sue Guevara et al.; E.D. Mich.; Case Number 09-10427-BC, 2009 U.S. Dist. LEXIS 103600; 11/6/09
Attorneys of Record: (for plaintiff) Cindy R. Victor, Victor Firm, Sterling Heights, MI. (for defendants) Michael E. Cavanaugh, Fraser, Trebilcock, Lansing, MI.
