A federal judge from the District of South Carolina has granted the University of South Carolina’s (USC) motion to dismiss a case that involved a former student-athlete, who sued the school for sexual harassment and retaliation as well as violations of Title IX.
In so ruling, the court found that plaintiff Idana DeCecco failed to provide the school with proper notice of the questionable activity.
DeCecco arrived at USC as a freshman and began practice with the soccer team on August 1, 2008. She did not participate in the pre-season voluntary summer workouts, which many freshmen attended, and also failed her initial physical fitness test. DeCecco was allegedly frustrated that she was not receiving as much playing time as she desired, as expressed in an email she sent to her mother. DeCecco’s father also raised concerns regarding DeCecco’s lack of playing time when he visited USC early in the fall of 2008. These action preceded an incident on October 12, 2008, which led to the litigation.
Citing deposition testimony, the court gave the following account: Assistant Soccer Coach Jamie Smith conveyed a message to DeCecco, through another player, to meet him in the coaches’ locker room for a private conference. DeCecco then went to the coaches’ locker room as directed.
Jamie Smith sat roughly six feet from DeCecco and asked how she was adjusting to the situation.
During the meeting, there were two sets of knocks at the door. DeCecco determined the person knocking was Head Soccer Coach Shelley Smith (married to Jamie) during the first set of knocks when the person knocking inquired, “Who’s in there?” DeCecco asked Jamie Smith if they should get the door, to which he responded, “don’t worry about it, just listen to me.” At roughly the same time as the second series of knocks, Jamie Smith touched DeCecco’s leg at or near her knee. DeCecco described her reaction at this point as “freaking out,” and testified that she immediately stood up, went to the door, and opened it.
When DeCecco opened the door, Shelley Smith looked at DeCecco and asked “what the hell is going on?” As Shelley Smith entered the room, DeCecco walked out. The door was then closed (DeCecco describes it as being closed in her face) after which DeCecco heard the Smiths arguing. DeCecco was shocked by the encounter and stood by the door for about 30 seconds before walking away.
DeCecco allegedly called her father, while walking back to her dorm to tell him about the encounter. DeCecco told her father that Jamie Smith “touched her thigh” and that she was “creeped out just being alone with Jamie and became extremely uncomfortable and distressed when Shelley arrived outside the room.”
The court found it significant that the plaintiff and her father assumed the head coach would handle the incident. “There is no evidence that DeCecco or her father followed up to see if Shelley Smith made a report or took other action,” wrote the court. “While there is no evidence of any report or corrective action, there is also no evidence that any similar incident (closed-door meeting with a male coach or arguably inappropriate touching) occurred thereafter, either to DeCecco or any other female soccer player.”
Nevertheless, from that point on, Shelley Smith allegedly retaliated against the plaintiff by limiting her playing time and reducing her scholarship to 75 percent. DeCecco eventually transferred to another school to remove herself from what she termed a “toxic environment.”
The plaintiff ultimately sued, proceeding against:
USC under three distinct legal theories: violation of Title IX, violation of Section 1983, and common law negligence/gross negligence (hiring, retention, and redshirt status);
Deputy Athletic Director Marcy Girton and former Athletic Director Eric Hyman under only one legal theory, common law negligence, based on an alleged failure to protect DeCecco from known risks presented by one or both of the Smiths; and
The Smiths under four distinct legal theories: violation of Section 1983 (sexual harassment), intentional infliction of emotional distress, negligence (failure to protect and intentional conduct), and fraud (based on alleged failed promises to seek or obtain redshirt status.)
After considering the arguments, the court reasoned that the school did not know that Jamie Smith posed a risk of sexual hostility to student-athletes and more specifically that it wasn’t given proper notice of the locker room incident, since the plaintiff and/or her father failed report it.
The failure to report the locker room incident as one of sexual harassment also prevented the plaintiff from being able to pursue a retaliation claim, since she could not demonstrate that she was engaged in protected activity because she had not reported the incident.
Further, the retaliation claim would also fail because Shelley Smith’s actions against the plaintiff were likely taken because of her jealousy over what had occurred in the locker room, not because the plaintiff had filed a Title IX claim.
One Legal Expert’s Take
Erin Buzuvis, Professor of Law, Western New England University, and Kristine Newhall, Ph.D. candidate in Women’s Studies, University of Iowa, who serve as editors and contributors to the Title IX blog, gave the following analysis:
“The court’s reasoning reflects a high burden on student-athletes to protect themselves from harassment and retaliation by coaches,” they wrote. “In order to be on notice of Jamie Smith’s capacity to sexually harass DeCecco, other players would have had to complain much more specifically about what his ‘inappropriate’ comments entailed, as the university was not faulted for failing to have followed up for these details. In order for Shelley Smith’s reaction to the locker room incident to count as retaliation, DeCecco would have had to actively complain to her about Jamie Smith’s conduct, even though the retaliation was motivated by her perception of what had occurred. Meanwhile, things that the coaches can use as leverage over players, playing time, scholarships, and, I’d argue, enforcement of the intra-team dating policy, are unexamined as weapons that create and sustain a power imbalance that keep athletes like DeCecco from speaking up about coaches’ bad behavior. Even if the court is right that the dating policy is neutral because it pertains to teammate relationships, not same-sex relationships, if the policy is being deployed in such a way to scare or suppress a player from complaining about harassment or retaliation, it’s discriminatory.
“Regardless of its legal liability, USC failed to ensure the safety and well-being of one of its student athletes. In that sense, the case should serve as a reminder to college and universities to carefully monitor the climate within athletics, not only for evidence of harassment, retaliation, and homophobia, but to ensure that players are encouraged and supported to report discrimination when it occurs.”
View the opinion: http://docs.justia.com/cases/federal/district-courts/south-carolina/scdce/3:2011cv02300/184723/175/
Idana Barbara Dececco v. University of South Carolina et al.; D.S.C.; Civil Action No. 3:11-cv-2300-CMC, 2013 U.S. Dist. LEXIS 6321’ 1/16/13
Attorneys of Record: (for plaintiff) Stephanie Underwood Roberts, LEAD ATTORNEY, Jeffrey D Patton, PRO HAC VICE, Spilman Thomas and Battle, Winston-Salem, NC; Michael S Garrison, PRO HAC VICE, Spilman Thomas and Battle, Charleston, WV. (for defendants) Shahin Vafai, LEAD ATTORNEY, Gignilliat Savitz and Bettis, Columbia, SC; Vance J Bettis, LEAD ATTORNEY, Gignilliat Savitz and Bettis LLP, Columbia, SC. Damon C Wlodarczyk, Nikole H Boland, Roy F Laney, LEAD ATTORNEYS, Riley Pope and Laney, Columbia, SC.
