THOMAS v. UNIVERSITY OF PITTSBURGH et al
Filing
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OPINION and ORDER denying 34 Motion to Dismiss for Failure to State a Claim; denying 36 Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge Maureen P. Kelly on 7/3/3014. (ndf )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRITTANEY M. THOMAS, an
Individual,
Plaintiff,
vs.
UNIVERSITY OF PITTSBURGH,
AGNUS BERENATO, an individual,
JANIA SIMS, an individual, PATTY
COYLE, an individual, KHADIJA
HEAD, an individual, MALLORIE
WINN, and individual, and STEVE
PEDERSON, an individual,
Defendants.
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Civil Action No.13-514
Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 34 & 36
OPINION
KELLY, Magistrate Judge
Plaintiff Brittany M. Thomas (“Plaintiff”), a former basketball player at the University of
Pittsburgh, filed this civil rights and tort action against Defendant Jania Sims (“Sims”), and
Defendants University of Pittsburgh (“the University”), Agnus Berenato (“Berenato”), Patty
Coyle (“Coyle”), Khadija Head (“Head”), Mallorie Winn (“Winn”), and Steve Pederson
(“Pederson”) (collectively, “the University Defendants”). Plaintiff alleges claims for intentional
discrimination on the basis of sex by the University and Pederson as well as claims for tortious
conduct by the University, Berenato, Sims, Coyle, Head, and Winn, arising out of a locker room
assault and Plaintiff’s dismissal from the University’s women’s basketball team after the
incident.
1
Before the Court are Motions to Dismiss certain claims set forth in Plaintiff’s Second
Amended Complaint filed on behalf of Defendant Sims, ECF No. 34, and the University
Defendants, ECF No. 36. The Court has reviewed Plaintiff’s Second Amended Complaint, ECF
No. 30, Defendants’ Motions to Dismiss, ECF Nos. 34 & 36, and accompanying Briefs in
Support, ECF Nos. 35 & 37, as well as Plaintiff’s Briefs in Opposition, ECF Nos. 39 & 41.
Additionally, the Court has reviewed the University Defendants’ Reply Brief, ECF No. 42. For
the following reasons, Sims’ Motion to Dismiss Plaintiff’s punitive damages claims included in
Counts I and II is denied; and the University Defendants’ Motion to Dismiss Counts VIII, IX, X
and XI is denied.
I.
FACTUAL AND PROCEDURAL BACKGROUND
When considering a motion to dismiss, the Court must accept as true the factual
allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor. Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011). Therefore, for the purposes of this decision, the
essential facts are as follows.
Plaintiff alleges that in June 2008, she transferred from the University of Florida to the
University of Pittsburgh, after signing a scholarship agreement. Pursuant to the agreement, the
University granted her financial aid for tuition in exchange for her participation as a player on
the women’s basketball team. ECF No. 30 ¶ 9. As a transfer student, Plaintiff sat out the 20082009 basketball season, but played the following season, earning accolades for her scoring,
overall play and character. Id. ¶¶ 10-13.
Plaintiff’s claims arise from an incident that took place after a basketball game on
December 1, 2010. Id. ¶ 14. In her Second Amended Complaint, Plaintiff alleges that on
December 1, 2010, the team played an away game against St. Francis University. The team lost,
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and immediately after the game, entered the locker room where Berenato, the head coach, began
a team meeting. Id. ¶¶ 16-18. Berenato left to speak with the media, and Coyle continued the
team meeting, which resulted in a conversation between Coyle and Plaintiff. Id. ¶¶ 20-22.
During the conversation, Plaintiff alleges that Sims “got up from her seat, crossed the
locker room, and in front of and in close proximity to Coyle, Head, and Winn, approached
Plaintiff in a threatening manner.” Id. ¶¶ 23-24. Plaintiff alleges that Sims argued with Plaintiff,
pushed her, and “sucker punched” Plaintiff with a closed fist on the left side of her face and
lower jaw area, causing multiple lacerations and bleeding from Plaintiff’s top and bottom lip.
Plaintiff alleges that Coyle, Head, and Winn knew Sims had a violent propensity, but none of
them made any effort to have her sit down or stay away from Plaintiff. Id. ¶ 25. Plaintiff claims
she attempted to grab Sims to stop the assault, which caused both players to fall to the ground.
Id. ¶ 26.
Berenato returned to the locker room, and Plaintiff told her what had transpired. Id.
Berenato did not reprimand Sims. Id. ¶¶ 27-28. Plaintiff told Berenato that she was going to call
her father regarding the incident. In response, Berenato grabbed Plaintiff’s cellphone and told
Plaintiff she was neither to call anyone nor go anywhere. Id. ¶ 29. Plaintiff attempted to leave the
locker room to call her father, but in an effort to stop her, Berenato shoved her forearm into
Plaintiff’s throat, pushing Plaintiff into the lockers and causing Plaintiff to have difficulty
breathing. Id. ¶¶ 30-32. Plaintiff alleges that Berenato kept Plaintiff isolated from the team while
the rest of the team showered. Id. ¶¶ 34-36. Plaintiff noticed a text message from her mother on a
second cell phone, but when she tried to respond, Head confiscated Plaintiff’s second cellphone.
Id. ¶ 37. After Plaintiff boarded the team bus, Berenato returned Plaintiff’s cellphones. Id. ¶ 41
3
On December 2, 2010, Plaintiff was contacted by Berenato via text message to talk with
the coaching staff. Id. ¶ 42. Plaintiff met with Berenato, Coyle, Head, and Winn, all of whom
blamed Plaintiff for the incident between Plaintiff and Sims. The next day, Plaintiff had a second
meeting with the coaching staff and Senior Associate Athletic Director Carol Sprague. During
this meeting, Plaintiff was informed that she was indefinitely suspended from the team. Id. ¶¶
42-44. Sims was also suspended from the team for her actions, but not indefinitely. Id. Plaintiff
alleges her dismissal stands in stark contrast to the treatment of certain male athletes who,
although criminally charged with assault or harassment, were permitted to remain at the
University as student athletes with all associated benefits and privileges intact. Id. ¶¶ 45-50.
II. STANDARD OF REVIEW
In assessing the sufficiency of the complaint pursuant to a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), the court must accept as true all material allegations in
the complaint and all reasonable factual inferences must be viewed in the light most favorable to
the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The court, however, need not
accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set
forth in the complaint. See California Public Employees’ Retirement System v. The Chubb
Corp., 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902,
906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “factual allegations must be
enough to raise a right to relief above the speculative level.” Id., citing Papasan v. Allain, 478
U.S. 265, 286 (1986). Indeed, the United States Supreme Court has held that a complaint is
properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege “enough facts to state
a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not
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allow the court “to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a
formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint
“must allege facts suggestive of the proscribed conduct” and that are sufficient “‘to raise a
reasonable expectation that discovery will reveal evidence of” each necessary element of his
claim).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating
whether all of the elements identified in part one of the inquiry are sufficiently alleged.” Malleus
v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a
plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,”
Twombly, 550 U.S. at 570. “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556
U.S. at 677. “When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at
679.
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III.
DISCUSSION
A. Punitive Damage Claims
Sims moves to dismiss Plaintiff’s claims for punitive damages as set forth in Plaintiff’s
Second Amended Complaint at (Count I) assault and (Count II) battery. Under Pennsylvania
law,
punitive damages are an extreme remedy available in only the most exceptional
matters. Punitive damages may be appropriately awarded only when the plaintiff
has established that the defendant has acted in an outrageous fashion due to either
the defendant's evil motive or his reckless indifference to the rights of others. A
defendant acts recklessly when his conduct creates an unreasonable risk of
physical harm to another and such risk is substantially greater than that which is
necessary to make his conduct negligent.
Seneca Ins. Co. v. Beale, No. 13-1737, 2014 WL 868928 (W.D. Pa. Mar. 5, 2014) (citations and
quotations omitted). Therefore, “a showing of mere negligence, or even gross negligence, will
not suffice to establish that punitive damages should be imposed. Rather, the plaintiff must
adduce evidence which goes beyond a showing of negligence, evidence sufficient to establish
that the defendant's acts amounted to intentional, willful, wanton or reckless conduct....” Id. See
also Chambers v. Montgomery, 192 A.2d 355, 358 (Pa. 1963) (punitive damages not appropriate
where there is no evidence that appellant intended to inflict bodily injury on appellee or that he
hoped for such a result. “This is not to say that appellant is not liable for the damages resulting
from the injury, but rather that the assault cannot be characterized as malicious, wanton, reckless
or oppressive”).
Plaintiff alleges that during the incident at issue, Sims walked across the locker room
from where she had been sitting to approach Plaintiff, and pushed and “sucker punched” Plaintiff
in the face with a closed fist. ECF No. 30 ¶ 24. Walking across the room to engage in a physical
confrontation indicates “willful, wanton or reckless conduct” that exceeds “a showing of mere
negligence, or even gross negligence….” Seneca Ins. Co. v. Beale, No. 13-1737, 2014 WL
6
868928 at *3. Plaintiff’s allegations are sufficient to state a claim for punitive damages. See,
also, Angelopoulos v. Lazarus PA Inc., 884 A.2d 255, 262 (Pa. Super. Ct. 2005) (evidence of
record supported the trial court’s submission of punitive damage claim to jury where Lazarus
detained Angelopoulos in violation of the Retail Theft Act for an unreasonable period of time, in
an unreasonable manner, and for a nefarious purpose).
Sims argues that the incident involved combat by mutual consent and therefore Plaintiff
fails to state a claim for punitive damages. See Mawhinney v. Holtzhauer, 77 A.2d 734 (Pa.
Super. Ct.1951). To the extent Defendant relies on Mawhinney, the Superior Court’s holding
makes clear that dismissal is inappropriate, whether on preliminary objections in state court or,
as here, a motion to dismiss in federal court, when the underlying misconduct gives rise to a
credibility contest. Id. at 735 (“conflicts as to who struck the first blow, and whether when
defendant struck plaintiff on the nose he was the aggressor or was merely anticipating an attack
by plaintiff, were questions of fact for the jury”). Plaintiff alleges that the only contact she
directed at Sims involved a belated attempt to grab Sims to stop the assault, causing both players
to fall the ground. ECF No. 30 ¶ 26. Accordingly, given the allegations set forth in Plaintiff’s
Second Amended Complaint, it is premature to dismiss Plaintiff’s claims for punitive damages.1
B. Section 1983 Claims
To state a claim arising under 42 U.S.C. §1983, a plaintiff must allege “the violation of a
right secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487
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Plaintiff also seeks punitive damages against the University and Berenato for assault (Count III), battery (Count
IV), and intentional infliction of emotional distress (Count IV); and for false imprisonment (Count V) against the
University, Berenato, and Head. However, the University Defendants have not substantively challenged Plaintiff’s
alleged entitlement to recover punitive damages; instead Defendants merely rely upon Sims’ arguments regarding
the viability of Plaintiff’s punitive damage claims as to her. [ECF No. 37, p. 3]. Accordingly, at this stage of the
litigation, and in the absence of any legal authority or argument to the contrary, Plaintiff’s punitive damage claims
against each of the remaining defendants may proceed as well.
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U.S. 42, 48 (1988). In this case, Plaintiff alleges Section 1983 claims against Pederson and the
University for the violation of her statutory rights under Title IX, 20 U.S.C. § 1681, and her right
to equal protection under the Fourteenth Amendment to the United States Constitution.2
1.
Equal Protection Claim (Count VIII)
The Fourteenth Amendment, in pertinent part, provides that “no State shall … deny to
any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1.
The Equal Protection Clause is “essentially a direction that all persons similarly situated should
be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Plaintiff has made an equal protection claim based on her membership in a protected
class. To allege a protected-class equal protection claim, a plaintiff must allege that: (1) she is a
member of a protected class; and (2) based on her gender she received different treatment than
that received by other similarly situated individuals. Oliveira v. Township of Irvington, 41 F.
App’x 555, 559 (3d Cir. 2002) (citing Keenan v. City of Philadelphia, 983 F.2d 459, 465 (3d
Cir.1992)). Persons are similarly situated under the Equal Protection Clause when they are alike
“in all relevant aspects.” Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008).
In addition, Plaintiff appears to allege a “class of one” equal protection claim. In Village
of Willowbrook v. Olech, 528 U.S. 562 (2000), the United States Supreme Court outlined the
“class of one” theory of equal protection. Under a “class of one” claim, a plaintiff asserts that she
“has been intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Id. at 564. “[T]o state a ‘class of one’ claim, a
plaintiff must allege that ‘(1) the defendant treated him differently from others similarly situated,
2
Gender discrimination covered by Title IX may “be pursued by way of a § 1983 suit by analyzing ‘the substantive
rights and protections guaranteed under Title IX and under the Equal Protection Clause.’” Hildebrand v. Allegheny
Cnty., No. 13-1321, 2014 WL 2898527 * 6, ___ F.3d ___ (3d Cir. June 27, 2014)(quoting Fitzgerald v. Barnstable
Sch. Comm., 555 U.S. 246, 256 (2009).
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(2) the defendant did so intentionally, and (3) there was no rational basis for the difference in
treatment.’” Borrell v. Bloomsburg Univ., 955 F. Supp. 2d 390, 405 (M.D. Pa. 2013) (quoting
Hill, 455 F.3d at 239).
The University and Pederson move to dismiss Plaintiff’s equal protection claim,
contending (i) Plaintiff has not alleged facts establishing disparate treatment based on gender
because her comparators are not “sufficiently similar,” and (ii) Pederson is entitled to qualified
immunity, and if the claim against him fails, the University cannot be held independently liable.
Plaintiff responds that the facts alleged clearly state a plausible Section 1983 equal protection
claim and that Pederson’s presumed knowledge of anti-discrimination laws renders untenable his
claim for qualified immunity.
a.
Plaintiff has alleged disparate treatment based on gender.
As to the first element of her claim, Plaintiff alleges that the University and Pederson
treated her differently than others similarly situated with regard to the discipline imposed for the
locker room incident, and that such selective treatment was predicated upon gender. Plaintiff
identifies four specific instances where the University Athletic Department declined to suspend a
male athlete after being criminally charged with assault or aggravated assault. ECF No. 30
¶¶ 120-124. Additionally, Plaintiff identifies several other instances of lenient discipline of male
athletes facing charges for harassment, disorderly conduct and drug possession. Plaintiff includes
an example of a male basketball player who was not suspended after being charged with
“aggravated assault and public drunkenness who allegedly disarmed a police officer.” Id. ¶ 120.
Plaintiff also alleges that Sims’ suspension was harsher punishment that that meted out to male
athletes who were not suspended after being charged with assault as support for the general
proposition that women athletes are disciplined much harsher than male athletes. Id. ¶¶ 124-125.
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The University and Pederson assert that Plaintiff has not alleged that Defendants treated
similarly situated individuals differently, because Plaintiff’s comparators consist of players with
different coaches playing different sports. However,
“[a]t the motion to dismiss stage, [the plaintiff] must allege facts sufficient to
make plausible the existence of ... similarly situated parties.” Perano v. Twp. of
Tilden, 423 Fed. Appx. 234, 238 (3d Cir. 2011). While “‘[p]ersons are similarly
situated under the Equal Protection Clause when they are alike in all relevant
aspects,’” Mun. Revenue Servs., Inc. v. McBlain, 347 Fed. Appx. 817, 825 (3d
Cir. 2009) (quoting Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008)),
“the law in the Third Circuit does not require [the plaintiff] to show that the
[comparators] are identical in all relevant respects but only that they are alike.”
Southersby Dev. Corp. v. Borough of Jefferson Hills, 852 F. Supp.2d 616, 628
(W.D. Pa. 2012) (citing Startzell, 533 F.3d at 203); see also Simmermon v.
Gabbianelli, 932 F. Supp.2d 626, 632–33 (D.N.J. 2013); Thomas v. Coopersmith,
No. 11–7578, 2012 WL 3599415, at *5 (E.D. Pa. Aug. 21, 2012). “Determining
whether an individual is ‘similarly situated’ to another individual is a case-bycase fact-intensive inquiry.” Chan v. Cnty. of Lancaster, No. 10–3424, 2011 WL
4478283, at *15 (E.D. Pa. Sept. 26, 2011) (citing Monaco v. Am. Gen. Assurance
Co., 359 F.3d 296, 305 (3d Cir. 2004)). “For that reason, some courts in this
Circuit have stated that ‘a final determination of this issue is inappropriate at the
motion-to-dismiss stage.’” Thomas, 2012 WL 3599415, at *5 (quoting Chan,
2011 WL 4478283, at *15).
Borrell v. Bloomsburg Univ., 955 F. Supp. at 405.
The University Defendants’ argument, taken at face value, would render implausible
any gender based equal protection claim in an athletic setting, simply because, overwhelmingly,
University athletes do not play on co-ed teams. Limiting comparators to players on the same
team playing for the same coach overlooks the basic premise of Plaintiff’s otherwise viable equal
protection claim; that women athletes are treated substantially harsher than male athletes,
regardless of whether they face identical charges or committed similar acts, simply and
intentionally because they are women. The University Defendants’ narrow construction of an
equal protection claim is not tenable in the context of Plaintiff’s claim. The alleged disparity in
discipline based upon gender and exemplified by Plaintiff’s identification of specific instances of
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male athletes, who were subject to the same disciplinary policy, and who allegedly committed
assaults, is sufficient to state an equal protection claim under 42 U.S.C. § 1983.
b.
Qualified Immunity
In the alternative, Pederson argues that the Motion to Dismiss should be granted in his
favor because he is entitled to qualified immunity, and derivatively, the University argues that it
cannot be independently liable if Pederson is immune.
“The doctrine of qualified immunity protects government officials ‘from liability
for civil damages insofar as their conduct does not violated clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815, 172 L.Ed. 2d
396 (1982)). There are two related but distinct inquiries in a qualified immunity
case. One is whether the defendant’s conduct violated the plaintiff’s civil rights;
the other is whether the right in question was clearly established at the time of the
violation.
Schneyder v. Smith, 653 F.3d 313, 318 (3d Cir. 2011). Having already found that there is a
potential question of fact concerning whether Defendant Pederson’s actions violated Plaintiff’s
equal protection rights, the question becomes whether the particular right at issue was clearly
established at the time.
“Ordinarily a constitutional duty is not clearly established simply because of the
existence of a broad imperative like the one against “unreasonable . . . seizures,” or equal
protection. Id. at 329, quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987). Rather, to be
clearly established, “the contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Id., quoting Anderson at 640. “The
ultimate question . . . is whether the defendant had ‘fair warning’ that his conduct deprived his
victim of a constitutional right.’” Id., quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002).
Here, the wrongfulness of Pederson’s actions appears to be self-evident under the longstanding constitutional and statutory protections afforded women athletes in and educational
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setting. With regard to Plaintiff’s constitutional rights, the Equal Protection Clause prohibits
states from arbitrarily treating women differently from men. Reed v. Reed, 404 U.S. 71, 74
(1971); see also Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1979) (the Equal Protection
Clause confers a federal constitutional right to be free from sex discrimination).
Apart from the constitutional prohibition against arbitrary treatment based upon gender,
as more fully discussed infra, a statutory obligation also may be found under the Civil Rights
Restoration Act of 1987, 20 U.S.C. § 1687 (1988), and pursuant to Title IX, 20 U.S.C. § 1681,
prohibiting gender discrimination in educational athletics. As summarized by the United States
Court of Appeals for the Third Circuit, the obligation of an educational institution in complying
with the requirements of Title IX in interscholastic athletics turns on whether “disparities of a
substantial and unjustified nature exist in the benefits, treatment, services, or opportunities
afforded male and female athletes in the institution’s program as a whole.” Williams v. Sch. Dist.
of Bethlehem, Pa., 998 F.2d 168, 176 (3d Cir. 1993). To the extent Plaintiff alleges a disparity in
disciplinary treatment of male and female athletes, it must be determined whether Pederson
violated clearly established statutory or constitutional rights of which a reasonable person in his
position would have known.
Plaintiff alleges Pederson enforces discipline for violations of the University’s Athletic
Department’s policies in a discriminatory manner, by implementing a policy of substantially
harsher discipline for female student-athletes than that imposed upon similarly situated male
student-athletes for similar violations of the Athletic Department’s policies. ECF No. 30 ¶¶ 45,
47-48, 118-121, 124. Plaintiff also alleges that Pederson has been employed as the director of a
large and competitive state university athletic department. Id. ¶45. Accordingly, Pederson
should be cognizant of his statutory obligation not to implement different disciplinary
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enforcement standards for male and female athletes. Disciplinary decisions affect a student
athlete’s ability to continue participation in a chosen sport, maintain scholarships, and complete
an undergraduate education. Pederson knows or should know that discrimination based on
gender in state university athletics, affecting each of these benefits, has been prohibited by law
since 1972, or at the latest, 1988. At this stage of the litigation, it is apparent therefore that
Defendant Pederson is not entitled to qualified immunity.
2.
Title IX Claim (Count IX)
Plaintiff alleges a Title IX claim against the University regarding its intentional disparate
disciplinary treatment of female student-athletes. Title IX provides that no person, on the basis
of sex, shall “be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance.”
20 U.S.C. § 1681(a). The University Defendants move to dismiss this claim, because (a) the
allegedly disparate treatment was not based on gender, and (b) Title IX does not provide a cause
of action for athletic disciplinary action.
Title IX was meant to cover “a wide range of intentional unequal treatment, by using
such a broad term, [“discrimination”], Congress gave the statute a broad reach.” Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167 (2005). In order to prove a prima facie case under Title
IX, a plaintiff must show: “1) that she was excluded from participation in or denied the benefits
of or subjected to discrimination in an educational program; 2) that the program receives federal
assistance; and 3) that the exclusion was on the basis of sex, i.e., gender.” Bougher v. Univ. of
Pgh., 713 F. Supp. 139, 143-44 (W.D. Pa. 1989).
In determining whether Plaintiff has alleged sufficient facts to state a Title IX claim, both
Plaintiff and the University agree that the University receives federal assistance. ECF No. 39,
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p. 14. As to the remaining elements of her claim, Plaintiff alleges she was excluded from playing
on the University’s women’s basketball team, and lost her eligibility to receive scholarship
money, as a result disparate treatment based on gender. ECF No. 30 ¶ 137.
In making their argument that Plaintiff has failed to state a Title IX claim, the University
Defendants ignore Title IX’s implementing regulatory structure and the broad prohibition of
discriminatory treatment in disciplinary matters for all educational programs or activities. See,
34 C.F.R. § 106.31(b)(4), which provides that an educational institution such as the University
“in providing any aid, benefit, or service to a student, … shall not, on the basis of sex:
. . .(4) Subject any person to separate or different rules of behavior, sanctions, or other
treatment.” Instead, the University Defendants rely exclusively on the examples of prohibited
discriminatory treatment in athletics set forth in 34 C.F.R. § 106.41(c), and observe that
discipline is not one of the protected categories. However, the University Defendants fail to
point to any authority for the proposition that the anti-discrimination provisions in disciplinary
matters set forth at 34 C.F.R. § 106.31(b)(4) do not apply to scholastic athletics.
In support of the required elements of her claim, Plaintiff provides specific examples of
disparate treatment. Plaintiff identifies four specific instances where the University’s Athletic
Department declined to suspend a male athlete after being charged with assault and several other
examples where male athletes were criminally charge for other offenses and yet not suspended.
Id. ¶ 137. Plaintiff alleges that Sims also received harsher punishment by being suspended after
the assault, when there are examples of male athletes who have not been suspended after
committing similar acts. Id. Accordingly, Plaintiff alleges sufficient facts regarding the
University’s disparate treatment of females and males relating to disciplinary procedures to
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sustain a Title IX claim. At this preliminary stage of the litigation, the Motion to Dismiss
Plaintiff’s Title IX claim is denied.
C. Defamation (Count X) and False Light (Count XI).
Plaintiff alleges that the University and Berenato defamed her (Count X) and invaded her
privacy (Count XI) by falsely stating to the Pittsburgh Post-Gazette and to the Pittsburgh Tribune
Review that Plaintiff was suspended and dismissed from the basketball team for “violating team
rules.” ECF No. 30 ¶ 144. Plaintiff alleges that these statements were made without regard to
falsity and with malice, to preserve Berenato’s reputation and to cover up the fact that Plaintiff’s
departure, in fact, was related to Berenato and Sims’ assaults, and the failure of the coaching
staff to prevent Plaintiff’s physical harm. The University Defendants contend that the statement
at issue is not capable of defamatory meaning, and ultimately protected Plaintiff’s reputation by
failing to refer to the locker room assault. The University Defendants also posit that since
Plaintiff has found employment as a player in Italy, she has suffered no harm from the allegedly
defamatory statements.
1. Defamation
To state a viable defamation claim under Pennsylvania law, Plaintiff must allege: (i) the
defamatory character of the communication; (ii) its publication by the defendant; (iii) its
application to the Plaintiff; (iv) the understanding by the recipient of its defamatory meaning;
and (v) the understanding by the recipient of it as intended to be applied to the plaintiff. Tucker
v. Fischbein, 237 F.3d 275, 281 (3d Cir. 2001), citing 42 Pa. Cons. Stat. Ann. § 8343(a) (1998).
“A publication is defamatory if it tends to blacken a person’s reputation or expose him to
public hatred, contempt or ridicule or injure him in his business or profession.” Dunlap v. Phila.
Newspapers, Inc., 448 A.2d 6, 10 (Pa. Super. Ct. 1982) (citation and internal quotation marks
15
omitted). “In order to be actionable, the words must be untrue, unjustifiable, and injurious to the
reputation of another.” Joseph v. Scranton Times L.P., 959 A.2d 322, 334 (Pa. Super. Ct. 2008).
“When communications tend to lower a person in the estimation of the community, deter third
persons from associating with him, or adversely affect his fitness for the proper conduct of his
lawful business or profession, they are deemed defamatory.” Id. (quoting Green v. Mizner, 692
A.2d 169, 172 (Pa. Super. Ct. 1997)). In addition, the United States Court of Appeals for the
Third Circuit has noted that “[t]hough we are not aware of any Pennsylvania Supreme Court case
on the point, inferior Pennsylvania courts applying Pennsylvania law have concluded that
defamation may be established where a statement, viewed in context, creates a false
implication.” Graboff v. Colleran Firm, 744 F.3d at 136, citing Dunlap v. Phila. Newspapers,
Inc., 448 A.2d at 15, and Mzamane v. Winfrey, 693 F.Supp.2d 442, 476–78 (E.D. Pa. 2010)
(collecting cases approving a defamation-by-implication theory).
“‘Procedurally, a trial court at the outset should decide whether a statement is capable of
a defamatory meaning.’ If the court determines that a statement can support such a meaning, the
jury then must decide ‘whether the recipient actually understood the statement to be
defamatory.’” Graboff v. Colleran Firm, 744 F.3d 128, 135-36 (3d Cir. 2014) (internal citations
omitted). The touchstone in determining whether a statement is capable of defamatory meaning
is how the statement would be interpreted by the average person to whom it was directed. See
Marier v. Lance, Inc., No. 07–4284, 2009 WL 297713, at *3 (3d Cir. Feb. 9, 2009) (internal
citation omitted) (“In analyzing whether or not a statement is defamatory, Pennsylvania courts
have held that “[t]he nature of the audience seeing or hearing the remarks is ... a critical factor in
determining whether the communication is capable of a defamatory meaning”).
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In this case, a statement regarding Plaintiff’s dismissal for failure to follow team rules,
given the consequences at issue (loss of scholarship, membership on an NCAA Division I team),
could reasonably be interpreted to mean that Plaintiff was not coachable or was so difficult to
manage and violated team rules to such a degree, that dismissal from the team was the only
alternative. Considering the intended audience for the statements, comprised of women’s
basketball teams, coaches and fans, this implication is capable of adversely affecting Plaintiff’s
reputation for fitness as a player for recruiting opportunities with scholastic or professional teams
or as a potential employee in a non-athletic setting. The fact that Plaintiff eventually found
employment as a player overseas does not detract from the potential damage done to her
recruiting or draft status in the United States, if her preference was to remain in North America
to play basketball.
In this regard, the statements are similar in nature to statements addressed in Mzamane,
which were determined to present questions of fact for a jury as to the defamatory innuendo
created. For example, statements such as “new employees were caring and dedicated” and that
individuals “who remained at [a boarding school] were qualified to care for the girls could be
understood by an average listener to infer the existence of undisclosed derogatory facts about
Plaintiff’s lack of such qualities.” Mzamane v. Winfrey, 693 F. Supp. 2d at 494. At this stage of
the litigation, the facts alleged by Plaintiff as to the damage done to her reputation by the
allegedly false statements are sufficient to support a claim for defamation. See, also, Smith v.
Wagner, 588 A.2d 1308, 1311 (Pa. Super. Ct .1991) (finding that depicting plaintiff as a liar is
capable of defamatory meaning under Pennsylvania law).
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2. False Light
In Graborr v. Colleran Firm, the United States Court of Appeals for the Third Circuit
explained the contours of a false light claim in Pennsylvania law as follows:
Pennsylvania has adopted the definition of false light invasion of privacy from the
Restatement (Second) of Torts, which imposes liability on a person who publishes
material that “is not true, is highly offensive to a reasonable person, and is
publicized with knowledge or in reckless disregard of its falsity.…” Although to
the best of our knowledge the Pennsylvania Supreme Court has not addressed the
contours of falsity in the false-light-invasion-of-privacy context, the Superior
Court has defined falsity broadly in that context. A plaintiff can establish falsity
by showing that a defendant “selectively printed or broadcast true statements or
pictures in a manner which created a false impression.” Thus, even where a
publication is literally true, “discrete presentation of information in a fashion
which renders the publication susceptible to inferences casting one in a false light
entitles the grievant to recompense for the wrong committed.” The Superior Court
has drawn this broad definition from defamation law, which permits recovery
where a publication was true, but implied falsehoods.
Applying this standard in Larsen [v. Phila. Newspapers, Inc., 543 A.2d 1181,
1199 (Pa. Super 1988)(en banc)], the Superior Court allowed the plaintiff's claim
to survive a motion to dismiss where he alleged that a series of articles, although
literally true, conveyed a false impression that he had lied under oath.
Graboff v. Colleran Firm, 744 F.3d at 136-37 (citations omitted).
The University Defendants contend that statements regarding Plaintiff’s dismissal for
“violating team rules” are not sufficiently offensive to state a claim for false light. Plaintiff
counters that she was a “stellar athlete with impeccable credentials both on and off the field of
play,” and that to be subject to dismissal for an undisclosed “rules violation” “implies conduct by
Plaintiff of the most horrendous nature.” ECF No. 39, p. 20. At this stage of the litigation,
accepting Plaintiff’s allegations as true, the Court is inclined to agree with Plaintiff. The
statements issued by the University and Berenato, in the context of the intended audience of fans,
competing teams, and potential recruiters, and given the consequences to Plaintiff, including
dismissal and the loss of a scholarship, are susceptible to inferences that Plaintiff committed a
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grievous violation, on par with actionable inferences found in Byars v. School Dist. of
Philadelphia, 942 F. Supp.2d 552, 567 (E.D. Pa. 2013) (that plaintiff was involved in the award
of a contract later identified as a waste of public funds); Larsen, supra, (that plaintiff lied under
oath), or Taha v. Bucks County, No. 12-6867, 2014 WL 1255211 (E.D. Pa. March 25, 2014)
(that plaintiff was “BUSTED!” for a crime he did not commit). At this early juncture, Plaintiff
has alleged a plausible claim for false light.
IV.
CONCLUSION
For the foregoing reasons, the Motions to Dismiss filed on behalf of Defendant Jania
Sims, ECF No. 34, and on behalf of the University Defendants, ECF No. 36, are denied. An
appropriate Order follows.
ORDER
AND NOW, this 3rd day of July, 2014, upon consideration of the Motions to Dismiss
filed on behalf of Defendant Jania Sims, ECF No. 34, and the Motion to Dismiss filed on behalf
of the University of Pittsburgh, Agnus Berenato, Patty Coyle, Khadija-Head, Mallorie Winn,
Carol Sprague and Steve Pederson, ECF No. 36, and the briefs filed in support and in opposition
thereto, IT IS HEREBY ORDERED that the Motions to Dismiss are DENIED.
BY THE COURT,
/s/ Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
Dated: July 3, 2014
All counsel of record by Notice of Electronic Filing
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