Yesterday, a security director for the NBA filed a lawsuit against USA Basketball, UConn Women’s Basketball Coach Geno Auriemma, and the NBA. It is just that — a complaint — nothing more and nothing less. Yet it is treated by many in the media as if the allegations have been proven true. (And Auriemma called the charges “beyond false.”)
You can download the lawsuit here.
Let me note at the outset that I have no idea whether the complaint is accurate or not. And neither do you.
Yet, while most people are taking the complaint at face value, a look at the complaint itself raises a whole host of employment law questions that, as someone who mainly represents employers, leave me wondering if there is more to the story than meets the eye.
1) Why was the lawsuit filed in New York state court (and not federal court) and how does a New York state court even have jurisdiction over Geno Auriemma, a Connecticut resident and worker?
2) It appears that there was never an administrative complaint filed with the EEOC or state equivalent, as the majority of harassment and discrimination claims are. Why not? Are her claims barred because of this?
3) Auriemma said in the papers that the first time he heard about the lawsuit was through press reports? Why did the Plaintiff and her attorneys go immediately to the press and not reach out to the parties? I’m always a little leery of parties trying their case through the press. (Also: Why is The New York Times letting them?)
4) Is there a statute of limitations defense that ought to be raised? Allegations of discrimination typically need to be brought within either 180 days, 300 days or 1 year; the allegation against Auriemma (that he tried to “forcibly kiss her”) dates back to 2009. Are some or all of the claims time-barred?
5) Similarly, will the retaliation complaint that she raises (that she was not given assignments in 2012 for an event in 2009) fail because of a timing issue? In other words, is 3 years too long of a gap to suggest that the reason for the actions against her were “retaliation”? And what is the employer’s legitimate business reason for the action?
6) Given the allegation that Auriemma “stalked, assaulted, and battered” the plaintiff, why didn’t the plaintiff — as a trained police detective — go to the police with the allegations? Is there something to substantiate her report back in 2009?
7) How is the allegation that Auriemma tried to kiss her “work-related” given that they worked for different employers at the time? Even if true, is it the type of isolated event that courts routinely dismiss? If you look at the complaint, the specific paragraphs referencing the legal claim are noticeably quiet as to whether Auriemma “discriminated” against her.
8) Plaintiff admits that “since 2005” she has continually “slammed against the NBA’s glass ceiling”. What role did her own outspoken actions contribute to her employment position?
9) Does she even have an employment discrmination claim against Auriemma and USA Basketball because they weren’t her employer? Even on the allegations for 2009, she merely claimed her role was to provide “security oversight for the WNBA players” on the national team, not any role with the national team itself. (It’s like the situation I discussed in a blog post yesterday.)
10) Allegations like this typically come down to credibility. So, naturally, the question will be: Are there other allegations against Auriemma from his time at UConn? It seems highly unlikely, given Connecticut’s relatively small-ish nature, that similar behavior would have gone unnoticed and unreported for 25 years.
Bonus Observation: The Plaintiff obviously believes that bringing Auriemma in as a named party can be a useful pressure point. She even used his name as the representative name for the Defendant. Thus, every reference to this lawsuit going forward will be “Hardwick v. Auriemma” despite the fact that most of her claims are really against her employer.
Whenever a complaint is filed, it’s natural to assume that there is some merit to it. But cases aren’t decided in the press; they are decided in the courts. And courts are concerned about legal questions.
For employers, the case is a constant reminder that the media doesn’t wait for a jury verdict; having a strong response for the press and being prepared to respond, are crucial to making sure you aren’t found “guilty” by the press before the verdict.