brook heike
TRANSCRIPT
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
BROOKE ELIZABETH HEIKE, ) ) Plaintiff, ) Case No. ) v. ) HONORABLE ) SUE GUEVARA, individually and ) in her official capacity, DAVE HEEKE, ) individually and in his official ) capacity, PATRICIA PICKLER, ) individually and in her official ) capacity, and CENTRAL MICHIGAN ) UNIVERSITY BOARD OF TRUSTEES, ) a constitutional body corporate, ) jointly and severally, ) JURY TRIAL REQUESTED ) Defendants. ) ________________________________________________________________
COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF
Plaintiff Brooke Elizabeth Heike, by and through her attorneys, The Victor
Firm, PLLC, hereby states for her complaint against defendants Sue Guevara,
individually and in her official capacity, Dave Heeke, individually and in his official
capacity, Patricia Pickler, individually and in her official capacity, and Central
Michigan University Board of Trustees, a constitutional body corporate, jointly
and severally, as follows:
JURISDICTION
1. This is a civil action:
(a) Arising under the Constitution and laws of the United States
and this Court has original federal jurisdiction pursuant to 28 U.S.C. §1331;
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(b) To redress the deprivation, under the color of law, of the
rights, privileges and immunities of plaintiff secured by the Constitution of the
United States providing for equal rights of its citizens and of all persons of any
jurisdiction in the United States, and this Court has original jurisdiction pursuant
to 28 U.S.C. §1343(3); and
(c) For declaratory judgment and injunctive relief pursuant to 42
U.S.C. §1983. and this Court has jurisdiction pursuant to 28 U.S.C. §1343(4).
2. The principal events giving rise to the claims stated herein occurred
in this Judicial District and venue is therefore proper in this District pursuant to 28
U.S.C. §1391(b).
3. This Court has authority to issue declaratory and injunctive relief
pursuant to 28 U.S.C. §2201 and 2202.
THE PARTIES
4. Plaintiff Brooke Elizabeth Heike is a female individual, who resides
in Macomb County, Michigan, within this Judicial District. Plaintiff is of
Caucasian and Native American descent.
5. Defendant Central Michigan University Board of Trustees is a
constitutional body corporate under the Michigan Constitution (1963), Art. 8, §§4-
6, operating in Isabella County, Michigan, within this Judicial District., which has
general supervision of its institution, Central Michigan University, a public
university of higher education (hereinafter referred to as “CMU”). Upon
information and belief, CMU receives federal funding.
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6. Defendant Sue Guevara is an individual who resides within this
Judicial District and who is employed by defendant CMU as Head Coach of the
women’s basketball program. Defendant Guevara is being sued individually and
in her official capacity. By virtue of her position as Head Coach of the women’s
basketball program, defendant Guevara is a policy-making and decision-making
official for CMU.
7. Defendant Dave Heeke is an individual who resides within this
Judicial District and who is employed by defendant CMU as its Athletics Director.
Defendant Heeke is being sued individually and in his official capacity. As
Athletics Director, defendant Heeke is the chief administrator and executive of
the Athletics Department of defendant CMU, and is a policy-making and
decision-making official for CMU. Defendant Heeke is responsible for the hiring
and supervision of the Athletics Department’s head coaches, including defendant
Guevara.
8. Defendant Patricia Pickler is an individual who resides within this
Judicial District and who is employed by defendant CMU as Assistant Director,
Office of Scholarships and Financial Aid. Defendant Pickler is being sued
individually and in her official capacity. In her position, defendant Pickler is a
policy-making and decision-making official for CMU.
FACTUAL ALLEGATIONS
9. Plaintiff Brooke Heike attended Romeo High School in Romeo,
Michigan, from September, 2002 through June, 2006.
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10. While at Romeo High School, plaintiff played on the girls’ basketball
team. During the time plaintiff played on that team, the team - the Bulldogs -
improved from a team which had a record of 1 win and 17 losses (plaintiff’s
freshman year) to one which won its league championship (plaintiff’s senior
year).
11. By all accounts, plaintiff was an outstanding athlete who was a
significant contributor to the turn-around of her high school women’s basketball
team, and to the league championship which the team won in 2006.
12. During high school plaintiff earned numerous awards, including, but
not limited to, Scholar Athlete (for having a 3.5 grade point average), MVP (“Most
Valuable Player”) and Co-Captain of the team in 2006, leading the team to the
best year in the school’s history. For that same year, plaintiff was named MVP of
the MAC Blue All-League Team, member of the 1st tier MAC All-Conference
team, member of the 1st tier All Metro East team (as selected by The Detroit
Free Press), member of the 2d All Metro East team (as selected by The Detroit
News), and received honorable mention on the All-State team (all women’s
basketball teams).
13. Based on her ability and achievements, several colleges and
universities recruited plaintiff to join their women’s basketball (and volleyball)
programs and offered her athletic scholarships covering all the costs of her
education if she were to choose to join their schools’ programs.
14. These schools who recruited plaintiff included several NCAA
Division I schools, such as the University of Michigan, Eastern Michigan
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University, University of Detroit-Mercy, Cleveland State University, University of
South Florida, Miami University, Concordia University (Ann Arbor), University of
New Mexico, Southwest Missouri State University, Northern Arizona University
and Bowling Green State University.
15. One of the schools which aggressively recruited plaintiff for its
women’s basketball team was defendant CMU.
16. Defendant CMU and its representatives promised plaintiff that, if
she enrolled at CMU and joined its women’s basketball team, she would receive
a college education at CMU and that her athletic scholarship would completely
pay for all expenses, including tuition, room and board and other expenses, for
the cost of that college education.
17. Then-CMU Head Coach Eileen Kleinfelter stated to plaintiff, at the
time she was recruited by CMU, “I can’t guarantee how much playing time you’ll
receive, but I can guarantee you an education.”
18. Then-CMU Head Coach Eileen Kleinfelter and other
representatives of CMU promised plaintiff that, if she chose to join CMU’s
women’s basketball program, she would receive a scholarship covering in-state
tuition, fees, room, board and book loan for the four years it would take plaintiff to
earn her degree at CMU.
19. On November 3, 2005, then Director of Athletics Herb Deromedi
sent plaintiff correspondence offering her an “athletic grant” covering in-state
tuition, fees, room, board and book loan (a copy of this letter is attached hereto
as Exhibit 1). Director of Athletics Deromedi’s letter states that renewal of the
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athletic grant (hereinafter referred to as “scholarship”) for subsequent years was
“subject to the conditions listed on the MAC [Mid America Conference] and
National Letters of Intent” (Exhibit 1).
20. Defendant CMU, through its authorized representatives, made
representations to plaintiff before and after November 3, 2005 that she would
receive the “athletic grant,” or scholarship, for all four years of her education.
21. Based on these representations, plaintiff, to her detriment, declined
the other offers which she received and accepted the offer of defendant CMU.
22. Plaintiff signed the Mid America Conference and National Letters of
Intent which then-Director of Athletics Deromedi had enclosed with this
November 3, 2005 letter (copies of these letters of intent are attached hereto as
Exhibits 2 and 3).
23. Plaintiff matriculated at defendant CMU in September, 2006 and
was a member of the CMU women’s basketball team beginning in her freshman
year, which was the 2006/2007 season.
24. At the time plaintiff became a member of the women’s basketball
team at defendant CMU, the Head Coach of that team was Eileen Kleinfelter.
25. In the 2005/2006 season, the CMU women’s basketball team had
won 16 games and lost 12 games under Head Coach Kleinfelter.
26. At the beginning of the 2006/2007 season, defendant CMU
announced:
The Chippewas also brought in one of the top recruiting classes in school history. … 6-1 forward Brooke Heike led Romeo High School to its best season in school history
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(Centralight, Winter, 2006 at 10 [a copy of this page of the Winter, 2006
Centralight is attached hereto as Exhibit 4).
27. On January 16, 2006, defendant Heeke had become the Athletics
Director at CMU, upon the retirement of then-Director of Athletics Herb
Deromedi.
28. On April 18, 2007, defendant Heeke introduced defendant Guevara
at a press conference as the new Head Coach for the CMU women’s basketball
program.
29. Prior to being hired by defendant CMU, defendant Guevara had
been abruptly fired as head coach of the women’s basketball team at the
University of Michigan in 2003, and had worked for three years as an assistant
coach at Auburn University.
30. Defendants Heeke and CMU did not investigate the reasons for
defendant Guevara’s firing by the University of Michigan or whether defendant
Guevara had forced players who were not her “type” to leave the team at that
school.
31. Defendants Heeke and CMU did not adequately or properly
investigate defendant Guevara’s background as a coach, including but not limited
to the fact that there had been a history of poor interpersonal relationships
among defendant Guevara and the players on the women’s basketball team at
the University of Michigan while defendant Guevara was head coach of that
program; or the fact that six players had left the University of Michigan women’s
basketball team during the seven seasons that defendant Guevara coached that
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team, all stating that poor communication on the part of defendant Guevara or
defendant Guevara’s invasions into their personal life (such as being upset
because they wore make-up or tight clothing or otherwise acted in a feminine
way) were the reasons for their leaving; or the fact that defendant Guevara and
the University of Michigan had been sued by an assistant coach because of
defendant Guevara’s behavior and actions.
32. In April, 2007, defendant Guevara met with plaintiff, and, without
watching plaintiff in practice or knowing anything about plaintiff’s athletic abilities,
drive, determination or self-discipline, told plaintiff that she did not want plaintiff to
wear make-up again and had Assistant Coach Bill Ferrara tell plaintiff that she
should transfer to Saginaw Valley State University.
33. During the 2007/2008 season, defendant Guevara repeatedly told
plaintiff that she was not her “type” of person.
34. Based on defendant Guevara’s comments to her both when they
were alone and when they were in front of others (such as her teammates),
plaintiff believed that defendant Guevara did not consider plaintiff to be her “type”
of person because plaintiff identified herself as heterosexual and wore make-up
(which defendant Guevara deemed to be an unacceptable heterosexual
behavior) and would not identify herself as homosexual or give up heterosexual
behavior.
35. Throughout the 2007/2008 season, defendant Guevara continued
to subject plaintiff to unwelcome harassment and discrimination because of
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plaintiff’s heterosexual preference and refusal to abandon her heterosexual
preference and adopt a homosexual preference.
36. Throughout the 2007/2008 season, defendant Guevara repeatedly
attempted to force plaintiff to transfer to another college or university because
plaintiff would not abandon her heterosexual preference and adopt a homosexual
preference.
37. Throughout the 2007/2008 season, defendant Guevara said to
plaintiff, in front of other team players and assistant coaches, that “your only role
on this team is to keep the grade point average up and challenge the players that
will play in games.”
38. Defendant Guevara’s discriminatory and harassing and
unconstitutional treatment of plaintiff caused plaintiff to suffer injury, including
physical illness for which she sought medical treatment.
39. As part of her discriminatory and wrongful plan to get plaintiff to quit
the team, on December 14, 2007, at team practice, defendant Guevara stated to
plaintiff, in front of the entire team, “just because you never play doesn’t mean
you don’t have to work hard,” to which plaintiff responded, “I work hard all the
time and never get to play? Why wouldn’t I work hard now?” In response,
defendant Guevara kicked her out of the practice that day.
40. Plaintiff was so upset by this wrongful and discriminatory treatment
and harassment and unconstitutional action on December 14, 2007, that she
became ill, could not eat, and vomited profusely. Plaintiff was examined by a
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medical doctor, who instructed by note that she not attend practice on December
15, 2007 because of her illness.
41. Despite receiving the doctor’s note as to plaintiff’s illness,
defendant Guevara wrongfully told others, including the assistant coaches and
team members, that she had kicked plaintiff out of practice on that day as well.
42. Immediately following this incident, plaintiff requested additional
assistance with her work-outs and training, which was never provided to her but
which was provided to the other players whom defendant Guevara retained on
the team.
43. Plaintiff continued to suffer injury, including significant emotional
stress, from defendant Guevara’s wrongful discriminatory and harassing and
unconstitutional actions toward her, and on December 19, 2007, was advised by
her doctor that her medical conditions were being triggered by this significant
emotional stress.
44. Plaintiff continued to work hard, despite the wrongful discriminatory
and harassing and unconstitutional actions against her. Plaintiff was never told
that her skills or abilities were lacking in any way. Prior to the tournament at
Northwestern University, Assistant Coach Ferrara advised plaintiff that she was
going to be looked at as a possible starter player, if not the first player off the
bench and placed into play on the basketball court.
45. Plaintiff was selected as the first player off the bench and placed
into play on the court at the tournament at Northwestern University.
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46. After the Northwestern University tournament, plaintiff spoke with
defendant Guevara on the bus ride back to CMU, and indicated that she wanted
to come in and watch the film of the game because she had actually played in
the game, and it was the longest time she had been able to play in a game.
47. Defendant Guevara directed her to Assistant Coach Kathy McGee,
with whom plaintiff made an appointment to view the film of the game at the
Northwestern University tournament. However, Assistant Coach McGee failed to
show up at the appointed time, and plaintiff was never provided another
opportunity to view the film of that game.
48. The CMU women’s basketball team won only 6 games and lost 23
games during the 2007/2008 season.
49. During the 2007/2008 women’s basketball season, defendant
Guevara never provided plaintiff with anything in writing as to her alleged
“deficiencies.”
50. During the 2007/2008 women’s basketball season, defendant
Guevara never put in place any program to assist plaintiff with her alleged
“deficiencies.”
51. During the 2007/2008 women’s basketball season, defendant
Guevara never communicated to plaintiff in any way that plaintiff did not meet
any type of expectation as a player on the team.
52. During the 2007/2008 women’s basketball season, defendant
Guevara never communicated to plaintiff that plaintiff’s retention of her
scholarship was in jeopardy in any way.
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53. Despite the complete lack of notice, on March 13, 2008, defendant
Guevara called plaintiff into her office and told plaintiff that plaintiff was not
defendant Guevara’s “type” and that she was taking away her scholarship and
eliminating her from the team.
54. During the meeting on March 13, 2008, defendant Guevara did not
tell plaintiff any reason for depriving plaintiff summarily of her property and liberty
rights, except only that plaintiff wasn’t defendant Guevara’s “type.” Defendant
Guevara gave never told plaintiff that she was taking away plaintiff’s scholarship
because of any deficiency on the part of plaintiff, or because plaintiff did not have
any ability or the capacity to improve her skills.
55. Defendant Guevara thereafter told the women’s basketball team
that plaintiff had been removed from the team and her scholarship taken away
from her because plaintiff was “unhappy,” not because of any deficiency on the
part of plaintiff or anything having to do with plaintiff’s ability or capacity to
improve her skills.
56. Even though plaintiff had been a member of the women’s
basketball team for two years, defendant Guevara refused to permit plaintiff to
attend the concluding dinner/banquet at the end of the season, thereby causing
plaintiff further embarrassment, shame and suffering.
57. Defendant Guevara deprived plaintiff and two other players on the
women’s basketball team of their scholarships so that she could give them to
players of a different race and color than plaintiff and the other two then-players
on the women’s basketball team.
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58. Defendant Guevara further deprived plaintiff of her scholarship and
singled plaintiff out for disparate, discriminatory treatment because defendant
Guevara openly disapproved of the fact that plaintiff identified herself as
heterosexual and as part of the sexual harassment defendant Guevara inflicted
on plaintiff because plaintiff engaged in activities which defendant Guevara
deemed an unacceptable heterosexual behavior, and because plaintiff would not
engage in or demonstrate behavior which would identify her as homosexual.
59. On March 27, 2008, defendant Pickler advised plaintiff by written
correspondence that plaintiff’s scholarship and financial aid would not be
renewed on the recommendation of the Athletics Department (a copy of this letter
is attached hereto as Exhibit 5).
60. On April 7, 2008, plaintiff requested by written correspondence a
hearing as to the non-renewal of her scholarship and financial aid, and in that
written correspondence, set forth the reasons why she believed defendants had
acted discriminatorily and wrongfully in depriving her of her scholarship, and thus
her education (a copy of this letter is attached hereto as Exhibit 6).
61. On June 5, 2008, defendant Pickler advised plaintiff and defendant
Guevara by written correspondence that an “appeal hearing to review the non-
renewal of Ms. Heike’s athletic aid for the 2008-2009 academic year has been
scheduled for Wednesday June 11, 2008” (a copy of this letter is attached as
Exhibit 7).
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62. Defendant Pickler began to demonstrate her animus toward plaintiff
in this written correspondence to plaintiff, as the salutation begins, “Dear Bethany
and Sue:” and does not even mention plaintiff’s name (Exhibit 7).
63. According to defendant Pickler’s written correspondence:
The purpose of this appeal hearing is to determine if the action to not renew Ms. Heike’s athletics aid for the 2008-2009 academic year was a substantial injustice. If the committee decides that it was more likely than not that Coach Guevara’s decision was reasonable, it will uphold the decision. If it decides that it was more likely than not that her decision was unreasonable, it will ask that Ms. Heike’s athletics aid be reinstated.
(Exhibit 7).
64. At no place in her correspondence does defendant Pickler indicate
the reason as to why the appeal committee was to determine if the action to
plaintiff “was a substantial injustice,” or from what source this “standard” was
derived.
65. At no place in her correspondence does defendant Pickler indicate
from what source or on what basis the appeal committee was to decide that
defendant Guevara’s decision was “reasonable” or “unreasonable,” or that which
constituted a “reasonable” or “unreasonable” decision.
66. Defendant Pickler attached to the written correspondence she sent
to plaintiff and defendant Guevara a written procedure for the hearing, which
permitted plaintiff to make a closing statement and which stated that, “The
student-athlete may ask questions of the coach and his or her witnesses” (Exhibit
7).
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67. Also attached to defendant Pickler’s written correspondence was a
document which had not previously been given to, shown to or reviewed with
plaintiff in any way, entitled “Brooke Heike Statement, prepared by Sue Guevara,
April 24, 2008” (a copy of this “statement” is attached hereto as Exhibit 8).
68. For the first time ever (and more than a month after she wrongfully
took away plaintiff’s scholarship), defendant Guevara set forth the purported
reasons for her decision (Exhibit 8).
69. According to defendant Guevara’s April 24th “statement,” plaintiff
“consistently could not compete at the same level of other players in our
program. Her skills were significantly deficient in each and every measurable
category” (Exhibit 8 at 2).
70. According to defendant Guevara’s April 24th “statement,” plaintiff
“consistently struggles to understand key basketball concepts. This was
reinforced by the secondary role that she played in all basketball practice
activities” (Exhibit 8 at 2).
71. According to defendant Guevara’s April 24th “statement,” “[w]hat is
most disconcerting is that Brooke never appeared to strike for success” (Exhibit 8
at 2).
72. According to defendant Guevara’s April 24th “statement,” “[e]ven
though Brooke was failing to meet these expectations, she did not seek
additional help or assistance.... Brooke never took the initiative to seek
additional assistance. She appeared to be very satisfied with her deficiencies
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and she never asked for additional assistance, even though her statistics and
conditioning were clearly lacking” (Exhibit 8 at 2).
73. In defendant Guevara’s April 24th “statement,” she included
purported “quotations” which plaintiff allegedly made to her on April 25, 207
(Exhibit 8 at 2) and Assistant Coach Ferrara on September 6, 2007 (Exhibit 8 at
2) and October 24, 2007 (Exhibit 8 at 3).
74. According to defendant Guevara’s April 24th “statement,” on
December 14, 2007, plaintiff “was kicked out of practice 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” (Exhibit 8 at 3).
75. According to defendant Guevara’s April 24th “statement,” on
December 15, 2007, plaintiff “was kicked out of practice again for lack of effort,
poor body language, and bad attitude ... this again stemmed from her
consistently missing sprint times and not grasping basic concepts essential to the
completion of conditioning drills” (Exhibit 8 at 3).
76. According to defendant Guevara’s April 24th “statement,” [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. Brooke
never requested additional assistance and never committed to improving her
skills” (Exhibit 8 at 4).
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77. At no place in defendant Guevara’s “statement” did she indicate
that she had taken plaintiff’s scholarship away from her because plaintiff did not
meet the conditions listed on the MAC and National Letters of Intent.
78. On June 11, 2008, plaintiff appeared before what was termed an
“Appeals Committee” at the CMU Office of Scholarship and Financial Aid (this
meeting is hereinafter referred to as “the June 11th meeting”). The Appeals
Committee members were defendant Pickler; Kevin Love, a professor of
management at CMU; and Julia Sherlock, CMU Director of Career Services.
79. Prior to the June 11th meeting, plaintiff had asked some current
women’s basketball team members to appear as witnesses on her behalf at the
meeting, but was told by those current team members that defendant Guevara
had instructed them that they were not allowed to attend and testify on plaintiff’s
behalf.
80. According to defendant Pickler, the purpose of the June 11, 2008
Appeals Committee meeting was “because Brooke has been notified that her
athletic scholarship will not be renewed for the 2008/2009 academic year and
she has requested the committee to review the decision” (a transcript of this
hearing is attached hereto as Exhibit 9).
81. However, instead of providing plaintiff notice and an opportunity to
be heard before an impartial tribunal before depriving her of her property and
liberty rights, the Appeals Committee of defendant CMU at the June 11th
meeting acted arbitrarily and capriciously, without competent, material and
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substantial evidence, and deprived plaintiff of her rights to procedural and
substantive due process before being taking away her property rights.
82. Throughout the entirety of the June 11th meeting, defendant Pickler
openly demonstrated her animus against and ill-will toward plaintiff.
83. Examples of defendant Pickler’s demonstrated animus against
plaintiff at the June 11th meeting include, but are not limited to, not permitting
plaintiff to make an opening statement at the hearing; not permitting plaintiff to
ask questions of witnesses which were relevant to the issues before the Appeals
Committee, such as asking defendant Guevara whether she planned on
depriving any other player who was not defendant Guevara’s “type” of her
scholarship as well; acting as “prosecutor” and “judge” by arguing on behalf of
defendant Guevara and deeming any evidence which supported plaintiff’s
position as “not relevant”; trying to intimidate and dissuade plaintiff by being
verbally abusive to her father, who was at the meeting, and threatening to throw
him out of the meeting for not “sitting back” (plaintiff’s father had merely leaned
forward in his chair to hold an exhibit for his daughter); cutting off plaintiff in the
middle of asking a question; rudely demanding of plaintiff as she asked a
relevant question of defendant Guevara, “what’s your point?”; and cutting off the
witness testimony of a former teammate of plaintiff who was describing the
wrongful conduct of defendant Guevara by telling her, “I think you’ve made your
point” (Exhibit 9).
84. While defendant Guevara stated at the June 11, 2008 meeting that
she took away plaintiff’s scholarship because plaintiff did not work hard and that
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defendant Guevara did not feel that plaintiff “did anything to improve herself after
being told over and over again what she needed to do” and that plaintiff “never
came in for help with her position coach, never sought any help after being told
what she needed to do and I just feel that she did not meet the expectations”
(Exhibit 9), defendant Guevara could not provide any examples at the hearing of
when plaintiff demonstrated these alleged shortcomings.
85. At the June 11th meeting, defendant Guevara confirmed that she
never provided plaintiff anything in writing as to plaintiff’s alleged deficiencies,
contrary to the assertions she made in her April 24th “statement” (Exhibit 9).
86. At the June 11th meeting, defendant Guevara confirmed that she
never put in place any program which would have assisted plaintiff to correct her
alleged deficiencies, contrary to the assertions defendant Guevara made in her
April 24th “statement” (Exhibit 9).
87. Despite the fact that defendant Guevara claimed to have deprived
plaintiff of her scholarship because she showed no “self-discipline” or “self-
improvement,” at the June 11th meeting, when plaintiff specifically said to
defendant Guevara, “how many times did I come to your office and say, ‘Coach,
what can I do? What can I do?” defendant Guevara replied, “Brooke, you’re right.
You’re right. You came in” (Exhibit 9), contrary to the assertions defendant
Guevara made in her April 24th “statement.”
88. At the June 11th meeting, defendant Guevara admitted that she
had never before taken away any player’s scholarship (Exhibit 9).
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89. At the June 11th meeting, defendant Guevara admitted that she
had pressured other players on teams she had coached in the past to transfer to
different schools (Exhibit 9).
90. At the June 11th meeting, defendant Guevara admitted that other
players on the women’s basketball team had missed sprints and yet remained on
the team and retained their scholarships, contrary to the assertions she made in
her April 24th “statement” (Exhibit 9).
91. At the June 11th meeting, defendant Guevara admitted that other
players on the women’s basketball team had been “kicked out of practice” and
yet remained on the team and retained their scholarships, contrary to the
assertions she made in her April 24th “statement” (Exhibit 9).
92. Plaintiff provided the Appeals Committee with the statistics for each
game of the 2007/2008 season, which showed that the players who were
retained on the team did not produce results and yet received a much greater
amount of playing time than did plaintiff (a copy of these statistics are attached
hereto as Exhibit 10).
93. These statistics directly contradicted the assertions which
defendant Guevara made in her April 24th “statement” that plaintiff’s “skills were
significantly deficient in each and every measurable category” (Exhibit 8).
94. None of the defendants, or anyone else, produced any statistics or
other evidence that plaintiff’s skills were significantly deficient in each and every
measurable category, and defendant Guevara could not identify any examples of
these deficiencies at the June 11th hearing (Exhibit 9).
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95. The statistics which plaintiff produced (Exhibit 10) demonstrated
that plaintiff did not fail to “grasp the team concept” or provide “inconsistent play”
or that her “skills were significantly deficient in each and every measurable
category,” contrary to defendant Guevara’s assertions in her April 24th
“statement.”
96. Defendant Guevara called no witnesses to support her statements
to the Appeals Committee (Exhibit 10).
97. Plaintiff produced at the hearing several witnesses to provide
evidence as to her athletic ability, basketball skills, work ethic, and initiative,
commitment and self-discipline for self-improvement, and that she did not miss
sprint times, contrary to defendant Guevara’s allegations (Exhibit 9).
98. Plaintiff’s witnesses contradicted every single assertion which
defendant Guevara made in her April 24th “statement” (Exhibit 9).
99. Defendant Guevara did not, and could not, produce any notes or
other written document to support the alleged “quotations” she set forth in her
April 24th “statement,” and admitted that there were no such writings (Exhibit 9).
100. Even Assistant Coach Bill Ferrara, defendant Guevara’s only
witness at the June 11th meeting, who testified in the nature of a “rebuttal
witness,” stated that the entire team needed to improve and that plaintiff was
frustrated with being singled out for disparate treatment, but that plaintiff’s skills
improved over the season (Exhibit 9).
101. Assistant Coach Ferrara confirmed at the June 11th meeting that
he never told plaintiff that her scholarship was in jeopardy (Exhibit 9).
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102. There was no evidence produced at the June 11th hearing that
plaintiff had not met the conditions listed on the MAC and National Letters of
Intent.
103. Plaintiff made clear to the Appeals Committee that she believed
she was being singled out for disparate, discriminatory treatment and abusive
wrongful sexual harassment because of her race and color and because of her
heterosexuality, and that she has suffered because of defendants’ wrongful
treatment of her.
104. Even in the face of this evidence, the Appeals Committee did not
question plaintiff as to the discrimination or harassment she suffered or challenge
it in any way.
105. Instead, after a two-hour meeting at which plaintiff produced
numerous witnesses and exhibits, and at which defendant Guevara produced
only one “rebuttal” witness - who actually confirmed that which plaintiff had stated
to the Appeals Committee - and not a single document to support her decision to
deprive plaintiff of scholarship, the Appeals Committee decided in a matter of
minutes after the meeting ended to continue to deprive plaintiff of her
scholarship, and thus her education.
106. Contrary to defendant Pickler’s June 5, 2008 written
correspondence, the Appeals Committee did not consider whether defendant
Guevara’s decision caused plaintiff to suffer a “substantial injustice” or whether
there was evidence demonstrating that defendant Guevara’s decision was
“reasonable.”
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107. Defendant Heeke and the Appeals Committee (of which defendant
Pickler was a member) of defendant CMU failed to make a careful, deliberate
and unbiased decision about plaintiff’s dismissal from the women’s basketball
team and the deprivation of her scholarship. Instead, they each simply “rubber-
stamped” defendant Guevara’s bad faith decision to deprive plaintiff of her
scholarship and dismiss her from the team for discriminatory and unlawfully
harassing and unconstitutional and retaliatory reasons unrelated to her athletic
abilities or capabilities.
108. By this action, defendants continued to deny to plaintiff her right to
procedural due process and substantive due process, treated plaintiff differently
than other similarly-situated student-athletes who were members of the women’s
basketball team, thereby depriving her of her right to equal protection under the
laws, and continued the discriminatory treatment and unlawful harassment to
which plaintiff had been subjected.
109. Defendants’ dismissal of plaintiff from the women’s basketball team
and deprivation of her scholarship was highly unusual, if not unprecedented in
any athletic program at defendant CMU.
110. Defendants have treated similarly-situated student-athletes on the
CMU women’s basketball team, whose athletic performance and work ethic were
equivalent to or less satisfactory that plaintiff’s athletic performance and work
ethic, more favorably than plaintiff because of race and color.
111. Defendants have treated similarly-situated student-athletes on the
CMU women’s basketball team, whose athletic performance and work ethic were
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equivalent to or less satisfactory that plaintiff’s athletic performance and work
ethic, more favorably than plaintiff because of plaintiff’s sexual preference of
heterosexuality.
112. Defendants applied a different standard to plaintiff than to similarly-
situated student-athletes with respect to assessing athletic performance and
work ethic and/or in making determinations as to deprivation of scholarships or
dismissals from athletic teams.
113. In the “Student-Athlete Handbook,“ it states under “CMU’s Policies
and Procedures” that sexual harassment is prohibited where it is unwelcome,
and that it extends to both heterosexual and homosexual situations (a copy of
this section of the “Student-Athlete Handbook” is attached hereto as Exhibit 11).
114. At all times plaintiff advised defendant Guevara that her adverse
comments as to plaintiff’s heterosexual preference and expressions of femininity
were unwelcome, but defendant Guevara would not cease from making such
comments.
115. Defendants failed to comply with the “CMU Policies and
Procedures” when plaintiff brought to their attention that she had been subjected
to unwelcome sexual harassment by defendant Guevara.
116. The actions of defendants about which plaintiff complains violated
and continue to violate plaintiff’s rights to procedural due process, substantive
due process and equal protection under the laws and were unlawfully
discriminatory because of plaintiff’s race and color and sexual preference and
constituted unlawful sexual harassment.
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117. The incidents set forth in the preceding paragraphs are sadly just a
few examples of the pattern of unlawful discriminatory treatment and harassment
and unconstitutional activity directed against plaintiff by all defendants.
118. Plaintiff has fundamental property rights and liberty interests in
maintaining her scholarship and in continuing her education.
119. Plaintiff’s reputation and her opportunity to pursue future
employment constitute a constitutionally protected liberty interest.
120. The policy to unlawfully harass and discriminate against plaintiff
and engage in unconstitutional activity denying plaintiff her fundamental and
constitutional rights has been directed by defendants and their representatives,
and has caused plaintiff to suffer significant economic, physical, emotional and
other compensatory injuries.
121. Defendants’ harassing and discriminatory and unconstitutional
actions are municipal actions, and are inherently arbitrary and capricious, and a
deliberate misuse of governmental power.
COUNT I
Claims Under 42 U.S.C. §1983 - Denial Of Due Process 122. The allegations set forth in paragraphs 1 through 121 are
incorporated herein by reference as if fully re-alleged herein.
123. Plaintiff by her race and color and gender is a member of the
classes protected by the federal civil rights statutes, including 42 U.S.C. §1983.
124. Plaintiff’s right to be free from unwelcome sexual harassment is
protected by the federal civil rights statutes, including 42 U.S.C. §1983.
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125. Defendants’ deprivation of plaintiff’s scholarship and dismissal of
her from the women’s basketball team was arbitrary and capricious and
motivated by bad faith.
126. Plaintiff was not afforded an unbiased, careful and deliberate
review process either prior to or following the deprivation of her scholarship and
her dismissal from the CMU women’s basketball team.
127. Defendants made false charges and accusations against plaintiff
which stigmatized her and severely damaged her opportunities for future
employment and association.
128. Plaintiff was denied a meaningful opportunity to clear her name.
129. Defendants, through their actions, deprived plaintiff of her federally
protected rights, privileges and immunities provided by federal law and the
United States Constitution, and wrongfully discriminated against her, and plaintiff
is thereby entitled to redress and damages for defendants’ violation of plaintiff’s
constitutional rights under 42 U.S.C. §1983.
130. Defendants are each liable, because each acted in violation of
plaintiff’s constitutional and civil rights, took no action to remedy the violation of
plaintiff’s constitutional and civil rights, and instead engaged in further wrongful
acts after they became aware, or should have become aware, of the
unconstitutionality and unlawfulness of their actions.
131. Defendants Guevara, Heeke and Pickler and other agents,
representatives and employees of defendant CMU acting under color of state law
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and in concert with one another, by their conduct, showed intentional, outrageous
and reckless disregard for plaintiff’s constitutional and civil rights.
132. Defendants Guevara, Heeke and Pickler and other agents,
representatives and employees of defendant CMU acting under color of state law
and in concert with one another, acted out of vindictiveness and animus and ill
will toward plaintiff.
133. The acts of defendants Guevara, Heeke, Pickler and other agents,
representatives and employees of defendant CMU as described in the preceding
paragraphs represent official policy of defendant CMU and are attributable to
defendant CMU.
134. At all material times hereto, plaintiff had clearly established rights to
due process of law about which a reasonable public official would have known.
135. The policies and actions of defendants were based on
considerations other than those proper to the good-faith administration of justice,
and lay far outside the scope of legitimate action.
136. Defendants’ actions constituted a deliberate denial, under color of
law, of plaintiff’s procedural and substantive due process rights guaranteed under
the Due Process Clause of the Fourteenth Amendment to the United States
Constitution, for which plaintiff seeks redress under 42 U.S.C. §1983.
137. As a direct and proximate result of defendants’ actions, plaintiff has
suffered and will continue to suffer injury, including irreparable harm, and
damages, including but not limited to monetary damages, the loss of her
scholarship or “athletic grant,” the loss of her education and degree, time and
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resources, the loss of career opportunities and earning capacity, physical and
emotional injury, mental and emotional distress, anxiety and mental anguish,
humiliation and embarrassment, and the loss of her personal and professional
reputation.
138. Because of the nature of defendants’ actions, plaintiff does not
have a complete and adequate remedy at law, and injunctive relief is required.
139. Because defendants acted with an improper motive and intent, in
an arbitrary and discriminatory manner, and their actions show reckless
disregard and callous indifference for plaintiff’s federally protected rights, plaintiff
is entitled to exemplary and/or punitive damages as well as redress for all other
damages which she has suffered, including costs and attorneys fees pursuant to
42 U.S.C. §1988.
WHEREFORE, plaintiff respectfully requests that this Honorable Court
enter an order granting the relief requested in the Request for Relief below, and
enter a judgment in an amount to be determined by this Court and a jury, plus
costs, interest and attorneys fees.
COUNT II
Claims Under 42 U.S.C. §1983 - Denial Of Equal Protection Under Law And Discriminatory And Harassing Treatment
140. The allegations set forth in paragraphs 1 through 139 are
incorporated herein by reference as if fully re-alleged herein.
141. Plaintiff by her race and color and gender is a member of the
classes protected by the federal civil rights statutes, including 42 U.S.C. §1983.
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142. Plaintiff’s right to be free from unwelcome sexual harassment is
protected by the federal civil rights statutes, including 42 U.S.C. §1983.
143. Plaintiff has the right to fair and equal treatment under the law, as
guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.
144. Defendants have intentionally singled out and treated plaintiff less
favorably than other similarly-situated persons, without any rational basis for that
treatment.
145. Defendants, through their actions, deprived plaintiff of her federally
protected rights, privileges and immunities provided by federal law and the
United States Constitution, and wrongfully discriminated against her, and plaintiff
is thereby entitled to redress and damages for defendants’ violation of plaintiff’s
constitutional rights under 42 U.S.C. §1983.
146. Defendants are each liable, because each acted in violation of
plaintiff’s constitutional and civil rights, took no action to remedy the violation of
plaintiff’s constitutional and civil rights, and instead engaged in further wrongful
acts after they became aware, or should have become aware, of the
unconstitutionality and unlawfulness of their actions.
147. Defendants Guevara, Heeke and Pickler and other agents,
representatives and employees of defendant CMU acting under color of state law
and in concert with one another, by their conduct, showed intentional, outrageous
and reckless disregard for plaintiff’s constitutional and civil rights.
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148. Defendants Guevara, Heeke and Pickler and other agents,
representatives and employees of defendant CMU acting under color of state law
and in concert with one another, acted out of vindictiveness and animus and ill
will toward plaintiff.
149. The acts of defendants Guevara, Heeke, Pickler and other agents,
representatives and employees of defendant CMU as set forth in the preceding
paragraphs represent official policy of defendant CMU and are attributable to
defendant CMU.
150. At all material times hereto, plaintiff had clearly established rights to
fair and equal treatment under the law about which a reasonable public official
would have known.
151. At all material times hereto, plaintiff had clearly established rights
not to have defendants discriminate against her on the basis of her race and
color about which a reasonable public official would have known.
152. At all material times hereto, plaintiff had clearly established rights
not to have defendants sexually harass her because of her heterosexual
preference about which a reasonable public official would have known.
153. The policies and actions of defendants were based on
considerations other than those proper to the good-faith administration of justice,
and lay far outside the scope of legitimate action.
154. Defendants’ actions constituted a deliberate denial, under color of
law, of plaintiff’s federal rights guaranteed under the Equal Protection Clause of
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the Fourteenth Amendment to the United States Constitution, for which plaintiff
seeks redress under 42 U.S.C. §1983.
155. As a direct and proximate result of defendants’ actions, plaintiff has
suffered and will continue to suffer injury, including irreparable harm, and
damages, including but not limited to monetary damages, the loss of her
scholarship or “athletic grant,” the loss of her education and degree, time and
resources, the loss of career opportunities and earning capacity, physical and
emotional injury, mental and emotional distress, anxiety and mental anguish,
humiliation and embarrassment, and the loss of her personal and professional
reputation.
156. Because of the nature of defendants’ actions, plaintiff does not
have a complete and adequate remedy at law, and injunctive relief is required.
157. Because defendants acted with an improper motive and intent, in
an arbitrary and discriminatory manner, and their actions show reckless
disregard and callous indifference for plaintiff’s federally protected rights, plaintiff
is entitled to exemplary and/or punitive damages as well as redress for all other
damages which she has suffered, including costs and attorneys fees pursuant to
42 U.S.C. §1988.
WHEREFORE, plaintiff respectfully requests that this Honorable Court
enter an order granting the relief requested in the Request for Relief below, and
enter a judgment in an amount to be determined by this Court and a jury, plus
costs, interest and attorneys fees.
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COUNT III
Breach Of Contract Or Implied Contract
158. The allegations set forth in paragraphs 1 through 157 are
incorporated herein by reference as if fully re-alleged herein.
159. Plaintiff had a contract or an implied contract with defendant CMU.
160. Defendants’ failure and refusal to abide by the terms of that
contract or implied contract constituted a breach of that contract or implied
contract.
161. As a direct and proximate result of defendants’ breach of contract
or implied contract, plaintiff has suffered and will continue to suffer injury and
damages, including but not limited to monetary damages, the loss of her
scholarship or “athletic grant,” the loss of her education and degree, time and
resources, the loss of career opportunities and earning capacity, physical and
emotional injury, mental and emotional distress, anxiety and mental anguish,
humiliation and embarrassment, and the loss of her personal and professional
reputation.
WHEREFORE, plaintiff respectfully requests that this Honorable Court
enter an order granting the relief requested in the Request for Relief below, and
enter a judgment in an amount to be determined by this Court and a jury, plus
costs, interest and attorneys fees.
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COUNT IV
Defamation
162. The allegations set forth in paragraphs 1 through 161 are
incorporated herein by reference as if fully re-alleged herein.
163. Defendants have each made statements about plaintiff orally and in
writing to third parties which are false and malicious and defamatory, as set forth
in detail in the preceding paragraphs and which are incorporated herein as if fully
re-alleged under this Count.
164. Defendants knew that the statements which they made were false
or misleading.
165. Defendants published the remarks about plaintiff to third parties
with knowledge of the falsity of the statements or in reckless disregard of truth or
falsity.
166. Defendants’ statements about plaintiff were not privileged.
167. Defendants’ statements about plaintiff amount to gross negligence.
168. Defendants made the false statements about plaintiff in order to
prejudice plaintiff and/or to deter others from dealing with her.
169. Defendants were negligently and/or knowingly at fault in the
publication of these false and defamatory statements about plaintiff.
170. Defendants' oral and written statements concerning plaintiff
constitute actionable defamation per se.
171. Defendants’ defamatory statements about plaintiff have seriously
injured plaintiff’s reputation.
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172. Defendants' defamatory statements about plaintiff have caused
plaintiff to suffer injury, including but not limited to, interfering with her
relationships with third parties.
173. As a direct and proximate result of defendants’ defamation of
plaintiff, plaintiff has suffered and will continue to suffer injury and damages,
including but not limited to monetary damages, the loss of her scholarship or
“athletic grant,” the loss of her education and degree, time and resources, the
loss of career opportunities and earning capacity, physical and emotional injury,
mental and emotional distress, anxiety and mental anguish, humiliation and
embarrassment, and the loss of her personal and professional reputation.
WHEREFORE, plaintiff respectfully requests that this Honorable Court
enter an order granting the relief requested in the Request for Relief below, and
enter a judgment in an amount to be determined by this Court and a jury, plus
costs, interest and attorneys fees.
COUNT V
Tortious Interference With A Contract Or Advantageous Business Relationship Or Expectancy
(Against Defendants Guevara, Heeke And Pickler Only)
174. The allegations set forth in paragraphs 1 through 173 are
incorporated herein by reference as if fully re-alleged herein.
175. Plaintiff had a contract or advantageous business relationship or
expectancy with defendant CMU.
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176. Defendants Guevara, Heeke and Pickler were aware of plaintiff’s
contract or advantageous business relationship or expectancy with defendant
CMU.
177. Defendants Guevara, Heeke and Pickler for personal reasons and
personal benefit, intentionally, improperly, and without justification interfered with
plaintiff’s advantageous business relationship and expectancy with defendant
CMU.
178. Defendants Guevara, Heeke and Pickler acted with malice in
interfering with plaintiff’s contract, business relationship or expectancy with
defendant CMU.
179. As a direct and proximate result of defendants’ tortious interference
with plaintiff’s contract, business relationship or expectancy, plaintiff has suffered
and will continue to suffer injury and damages, including but not limited to
monetary damages, the loss of her scholarship or “athletic grant,” the loss of her
education and degree, time and resources, the loss of career opportunities and
earning capacity, physical and emotional injury, mental and emotional distress,
anxiety and mental anguish, humiliation and embarrassment, and the loss of her
personal and professional reputation.
WHEREFORE, plaintiff respectfully requests that this Honorable Court
enter an order granting the relief requested in the Request for Relief below, and
enter a judgment in an amount to be determined by this Court and a jury, plus
costs, interest and attorneys fees.
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COUNT VI
Intentional Infliction Of Emotional Distress
180. The allegations set forth in paragraphs 1 through 179 are
incorporated herein by reference as if fully re-alleged herein.
181. Defendants’ conduct as set forth in the preceding paragraphs was
intentional.
182. Defendants’ conduct as set forth in the preceding paragraphs was
extreme, outrageous and of such character as not to be tolerated by a civilized
society.
183. Defendants were grossly negligent in engaging in the conduct
which plaintiff has set forth in the preceding paragraphs.
184. Defendants’ conduct resulted in severe and serious emotional
distress being inflicted upon plaintiff.
185. As a direct and proximate result of defendants’ intentional infliction
of emotional distress, plaintiff has suffered and will continue to suffer injury and
damages, including but not limited to monetary damages, the loss of her
scholarship or “athletic grant,” the loss of her education and degree, time and
resources, the loss of career opportunities and earning capacity, physical and
emotional injury, mental and emotional distress, anxiety and mental anguish,
humiliation and embarrassment, and the loss of her personal and professional
reputation.
WHEREFORE, plaintiff respectfully requests that this Honorable Court
enter an order granting the relief requested in the Request for Relief below, and
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enter a judgment in an amount to be determined by this Court and a jury, plus
costs, interest and attorneys fees.
COUNT VII
Claims Under The Michigan Civil Rights Act
186. The allegations set forth in paragraphs 1 through 185 are
incorporated herein by reference as if fully re-alleged herein.
187. Defendant CMU is a place of public accommodation, a public
service and an educational institution, all as defined in the Michigan Civil Rights
Act (“CRA”), MCL 37.2301, 37.2401.
188. Defendants Guevara, Heeke and Pickler are “persons,” as defined
in the CRA, and are agents of defendant CMU.
189. Defendants have violated the CRA by treating similarly-situated
student-athletes at defendant CMU, whose athletic performance and work ethic
was equivalent to or less satisfactory than plaintiff’s athletic performance and
work ethic, more favorable than they treated plaintiff, because of plaintiff’s race
and color.
190. Defendants have violated the CRA by treating similarly-situated
student-athletes at defendant CMU, whose athletic performance and work ethic
was equivalent to or less satisfactory than plaintiff’s athletic performance and
work ethic, more favorably than they treated plaintiff, because of plaintiff’s
heterosexual preference.
191. Defendants’ actions have resulted in discrimination against plaintiff
in her full utilization of a benefit from defendant CMU, an educational institution,
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and/or in her full utilization of services, activities or programs provided by
defendant CMU, an educational institution, because of plaintiff’s race and color.
192. Defendants’ actions have resulted in discrimination against plaintiff
in her full utilization of a benefit from defendant CMU, an educational institution,
and/or in her full utilization of services, activities or programs provided by
defendant CMU, an educational institution, because of plaintiff’s heterosexual
preference.
193. Defendants’ actions resulted in depriving plaintiff of her athletic
grant or scholarship and dismissing her from the women’s basketball team and
otherwise discriminating against her as an individual enrolled as a student, as to
the terms, conditions and privileges of defendant CMU, an educational institution,
because of plaintiff’s race and color.
194. Defendants’ actions resulted in depriving plaintiff of her athletic
grant or scholarship and dismissing her from the women’s basketball team and
otherwise discriminating against and/or unlawfully harassing her as an individual
enrolled as a student, as to the terms, conditions and privileges of defendant
CMU, an educational institution, because of plaintiff’s heterosexual preference.
195. Defendants’ actions resulted in denying plaintiff the full and equal
enjoyment of the services, facilities, privilege and advantages of a public
accommodation or public service, because of plaintiff’s race and color.
196. Defendants’ actions resulted in denying plaintiff the full and equal
enjoyment of the services, facilities, privilege and advantages of a public
accommodation or public service, because of plaintiff’s heterosexual preference.
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197. Defendants, by their agents, representatives and employees, were
predisposed to discriminate on the basis of race and color and acted in
accordance with that predisposition.
198. Defendants, by their agents, representatives and employees, were
predisposed to discriminate on the basis of plaintiff’s heterosexual preference
and acted in accordance with that predisposition.
199. Defendants’ actions as described in the preceding paragraphs were
committed in deliberate disregard of, and/or with reckless indifference to, the
rights and sensibilities of plaintiff.
200. As a direct and proximate result of defendants’ violation of the
Michigan Civil Rights Act, plaintiff has suffered and will continue to suffer injury
and damages, including but not limited to monetary damages, the loss of her
scholarship or “athletic grant,” the loss of her education and degree, time and
resources, the loss of career opportunities and earning capacity, physical and
emotional injury, mental and emotional distress, anxiety and mental anguish,
humiliation and embarrassment, and the loss of her personal and professional
reputation.
WHEREFORE, plaintiff respectfully requests that this Honorable Court
enter an order granting the relief requested in the Request for Relief below, and
enter a judgment in an amount to be determined by this Court and a jury, plus
costs, interest and attorneys fees.
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COUNT VIII
Negligent Hiring Of Defendant Guevara (Defendants CMU And Heeke Only)
201. The allegations set forth in paragraphs 1 through 200 are
incorporated herein by reference as if fully re-alleged herein.
202. Defendants CMU and Heeke both owed plaintiff a duty to use
reasonable care in hiring and retaining only those employees who would not
cause her to suffer injury.
203. Before they hired defendant Guevara, defendants CMU and Heeke
should have investigated defendant Guevara’s background, including, but not
limited to, the fact that there was a history of poor interpersonal relationships
among defendant Guevara and the players on the women’s basketball team at
the University of Michigan during the time defendant 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 defendant Guevara was
head coach of that program, each departing player citing poor communication on
the part of defendant Guevara or defendant 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 defendant Guevara and the University of Michigan had been sued by
an assistant coach because of defendant Guevara’s behavior and actions.
204. Before they hired defendant Guevara, defendants CMU and Heeke
knew or should have known that defendant Guevara was unfit for hiring as Head
Coach of the CMU women’s basketball program, based on her past work history,
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poor interpersonal relationships with players on teams she coached, and her
actions towards the players on those teams which caused those players to leave
the teams.
205. Defendants CMU and Heeke failed to investigate, or failed to
adequately investigate, or were negligent in investigating, defendant Guevara’s
previous work history and performance in interacting with the student-athletes
before hiring her as Head Coach of the CMU women’s basketball program.
206. Defendants CMU’s and Heeke’s actions in failing to investigate, or
failing to adequately investigate, or negligently investigating, defendant
Guevara’s previous work history and performance in interacting with the student-
athletes before hiring her as Head Coach of the CMU women’s basketball
program proximately caused plaintiff to suffer injury.
207. Defendants CMU and Heeke had actual knowledge, or should have
known, of defendant Guevara’s propensity to discriminate on the basis of race
and color and sexual preference and to deprive players such as plaintiff of their
federally-protected constitutional rights.
208. As a direct and proximate result of defendants CMU’s and Heeke’s
negligent hiring of defendant Guevara, plaintiff has suffered and will continue to
suffer injury and damages, including but not limited to monetary damages, the
loss of her scholarship or “athletic grant,” the loss of her education and degree,
time and resources, the loss of career opportunities and earning capacity,
physical and emotional injury, mental and emotional distress, anxiety and mental
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anguish, humiliation and embarrassment, and the loss of her personal and
professional reputation.
WHEREFORE, plaintiff respectfully requests that this Honorable Court
enter an order granting the relief requested in the Request for Relief below, and
enter a judgment in an amount to be determined by this Court and a jury, plus
costs, interest and attorneys fees.
COUNT IX
Negligent Supervision Of Defendant Guevara (Defendant CMU And Heeke Only)
209. The allegations set forth in paragraphs 1 through 208 are
incorporated herein by reference as if fully re-alleged herein.
210. Defendants CMU and Heeke both owed plaintiff a duty to use
reasonable care in supervising their employees, including defendant Guevara.
211. As defendant Guevara’s supervisors, defendants CMU and Heeke
knew or should have known that defendant Guevara was discriminating against
plaintiff and unlawfully harassing plaintiff because of her race and color and
sexual preference and depriving plaintiff of her federally-protected constitutional
rights.
212. As defendant Guevara’s supervisors, defendants CMU and Heeke
failed to supervise, or failed to adequately supervise, or were negligent in
supervising, defendant Guevara.
213. As defendant Guevara’s supervisors, defendants CMU and Heeke
failed to investigate, or failed to adequately investigate, or were negligent in
investigating, plaintiff’s complaints that defendant Guevara discriminated against
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her and unlawfully harassed her because of her race and color and sexual
preference and deprived her of her federally-protected constitutional rights.
214. Defendants CMU’s and Heeke’s actions in failing to investigate, or
failing to adequately investigate, or negligently investigating, defendant
Guevara’s previous work history and performance in interacting with the student-
athletes before hiring her as Head Coach of the CMU women’s basketball
program proximately caused plaintiff to suffer injury.
215. Defendants CMU and Heeke had actual knowledge, or should have
known, that defendant 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.
216. As a direct and proximate result of defendants CMU’s and Heeke’s
negligent supervision of defendant Guevara, plaintiff has suffered and will
continue to suffer injury and damages, including but not limited to monetary
damages, the loss of her scholarship or “athletic grant,” the loss of her education
and degree, time and resources, the loss of career opportunities and earning
capacity, physical and emotional injury, mental and emotional distress, anxiety
and mental anguish, humiliation and embarrassment, and the loss of her
personal and professional reputation.
WHEREFORE, plaintiff respectfully requests that this Honorable Court
enter an order granting the relief requested in the Request for Relief below, and
enter a judgment in an amount to be determined by this Court and a jury, plus
costs, interest and attorneys fees.
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REQUEST FOR RELIEF
Plaintiff respectfully requests that this Honorable Court enter a judgment in
an amount to be determined by this Court and/or a jury, plus costs, interest,
exemplary and/or punitive damages and attorneys fees, and further that this
Honorable Court enter an order that:
A. Preliminarily and permanently enjoins defendants, and their agents,
successors, representatives, assigns or any other person or entity acting for or
on their behalf, from violating plaintiff’s rights to due process, from denying
plaintiff equal protection under the laws and from retaliating against plaintiff for
her actions in seeking redress for her grievances;
B. Preliminarily and permanently enjoins defendants, and their agents,
successors, representatives, assigns or any other person or entity acting for or
on their behalf, from discriminating against plaintiff or unlawfully harassing
plaintiff on the basis of her race and color and/or sexual preference;
C. Awards plaintiff, pursuant to 42 U.S.C. §1988, her costs, attorneys
fees, interest, lost profits, and all other actual, compensatory, incidental,
consequential, and exemplary and punitive damages as against all defendants,
jointly and severally;
D. Awards plaintiff, pursuant to MCR 37.2301 and 37.2401, her costs,
attorneys fees, interest, lost profits, and all other actual, compensatory,
incidental, consequential, and exemplary and punitive damages as against all
defendants, jointly and severally;
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E. Awards plaintiff, on her other causes of action, all actual,
compensatory, incidental, consequential, and exemplary and punitive damages
as against all defendants, jointly and severally;
F. Orders defendants to Show Cause why preliminary injunctive relief
should not be granted; and
G. Awards any other and further relief to plaintiff as this Court deems
just and proper.
/s/ Cindy Rhodes Victor___________ CINDY RHODES VICTOR (P33613) The Victor Firm, PLLC 35801 Mound Road Sterling Heights, Michigan 48310 (586) 274-9600 [email protected] Attorneys for Plaintiff Dated: February 3, 2009 Brooke Elizabeth Heike
DEMAND FOR JURY Plaintiff Brooke Elizabeth Heike, by and through her attorneys, The Victor
Firm, PLLC, hereby demand a trial by jury on her causes of action against
defendants Sue Guevara, individually and in her official capacity, Dave Heeke,
individually and in his official capacity, Patricia Pickler, individually and in her
official capacity, and Central Michigan University Board of Trustees, a
constitutional body corporate, jointly and severally.
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Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 45 of 46
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/s/ Cindy Rhodes Victor___________ CINDY RHODES VICTOR (P33613) The Victor Firm, PLLC 35801 Mound Road Sterling Heights, Michigan 48310 (586) 274-9600 [email protected] Attorneys for Plaintiff Dated: February 3, 2009 Brooke Elizabeth Heike
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 46 of 46