Geno being sued

[CamrnCrz1974]

A motion to dismiss can be filed with the Answer to the complaint which is likely due in 30 days, or it can be filed after the Answer is filed. My guess is it'll be filed soon. A decision by the court could take a while. The legal blog linked in John A's blog also raises a jurisdictional issue that I thought about as well. The suit was filed in state court which requires personal jurisdiction over Geno (since the alleged act(s) didn't take place in NY). I don't see how the court has jurisdiction over Geno as he resides and works in CT and doesn't appear to have regular and purposeful activities in NY. A motion to dismiss could proceed on a jurisdictional grounds as well. (There would be no jurisdiction issue if the suit were filed in federal court but a federal complaint requires a claim under federal law. I'm no expert on federal employment law but I wonder if an administrative filing (EEOC) is required before filing a lawsuit.)

See my previous post about Title VII. It also appears she filed state law claims so Geno could be named individually. Under Title VII, he could not be.

As for compliance with administrative prerequisites, a claimant needs to file a Charge of Discrimination with the Equal Employment Opportunity Commission within 180 calendar days from the day the discrimination took place.

The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency (like the Arizona Civil Rights Division; I practice in Arizona) enforces a law that prohibits employment discrimination on the same basis. Timely filing a charge of discrimination is a prerequisite to filing a private lawsuit. See Fonesca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 845 (9th Cir. 2004).

 

[Icebear]

There is no individual liability under Title VII, for discrimination, retaliation, or harassment. Employers are liable through respondeat superior.

The New York statute, in an odd twist, appears to allow claims against individuals for retaliation, but not for alleged discrimination.

Cam, some have raised the question if Geno is charged properly under New York law because he is a CT resident and his employer is not in NY either.

 

[CamrnCrz1974]

Cam, some have raised the question if Geno is charged properly under New York law because he is a CT resident and his employer is not in NY either.

As a general matter, Title VII (the federal law) applies to employers/employees, not independent contractors. The New York statute is likely similar, but as I demonstrated above w/r/t individual liability for retaliation, there are some differences.

The issue, for jurisdictional purposes, is what Geno did to avail himself of jurisdiction in New York. This could be accomplished by the location of the alleged actions or the location of the corporate entity/employer. Upon first hearing about the litigation, though, one of my first thoughts was to question whether jurisdiction was proper.

 

[Icebear]

As a general matter, Title VII (the federal law) applies to employers/employees, not independent contractors. The New York statute is likely similar, but as I demonstrated above w/r/t individual liability for retaliation, there are some differences.

The issue, for jurisdictional purposes, is what Geno did to avail himself of jurisdiction in New York. This could be accomplished by the location of the alleged actions or the location of the corporate entity/employer. Upon first hearing about the litigation, though, one of my first thoughts was to question whether jurisdiction was proper.

Geno's employer in this case is USA basketball which is centered in Colorado Springs, CO. Geno has no connection to the NBA

 

[CamrnCrz1974]

A motion to dismiss can be filed with the Answer to the complaint which is likely due in 30 days, or it can be filed after the Answer is filed.

Generally, under the federal rules, if it is a motion to dismiss for failure to state a claim (Rule 12(b)(6)), it should be brought before the Answer is filed. I generally will file a Motion for Judgment on the Pleadings (Rule 12(c)) if I am filing an Answer, but also filing a dispositive motion at the outset of the litigation.

A motion to dismiss for lack of subject matter jurisdiction (Rule 12(b)(1)) or personal jurisdiction (Rule 12(b)(2)) should generally also be filed before the Answer.

 

[CamrnCrz1974]

Geno's employer in this case is USA basketball which is centered in Colorado Springs, CO. Geno has no connection to the NBA

The question is whether Geno is truly an "employee" of USA Basketball or if he is an independent contractor. There is a 12 factor test used to determine whether someone is an employee or someone is an independent contractor, for purposes of federal law (Title VII). The factors relevant to this inquiry are as follows:

[1] the skill required; [2] the source of the instrumentalities and tools; [3] the location of the work; [4] the duration of the relationship between the parties; [5] whether the hiring party has the right to assign additional projects to the hired party; [6] the extent of the hired party’s discretion over when and how long to work; [7] the method of payment; [8] the hired party’s role in hiring and paying assistants; [9] whether the work is part of the regular business of the hiring party; [10] whether the hiring party is in business; [11] the provision of employee benefits; and [12] the tax treatment of the hired party.

Edited to add: The test outlined above is from Ninth Circuit cases named Adcock and Lutcher. There is a DC Circuit case named Spirides that focus almost solely on the right to control the means and manner of one's performance. In the Ninth Circuit, the right of control is a primary inquiry, but not the sole one, and all twelve factors are relevant to the inquiry. New York, for those who do not know, is in the Second Circuit, as far as its federal courts are concerned.

 

[Kibitzer]

I can't imagine why Cam provides us (and Dukies) with so much insight about wcbb since he has now revealed a little promise in the more lucrative field of jurispudence.

 

[CamrnCrz1974]

I can't imagine why Cam provides us (and Dukies) with so much insight about wcbb since he has now revealed a little promise in the more lucrative field of jurispudence.

Due to the various downturns in the economy over the past decade, my Duke Law School degree was no longer sufficient to get me hired as a "waiter" at some of the "better restaurants." As a result, I had to resort to working at one of the biggest firms in the country and now as the Assistant City Attorney for one of the largest cities in the United States.

 

[Santini35]

Take a look at these comments from her Lawyer on Altavilla's Blog:

"The lawyer representing NBA security director Kelley Hardwick in her employment discrimination suit against Geno Auriemma, the NBA and USA Basketball said Wednesday a possible trial might not take place for years.
“It could take two to three years for the case to be heard,” said Randolph M. McLaughlin, counsel for the New York law firm Newman Ferrara LLP. “There needs to be a discovery phase, we’ll need to bring Auriemma in, put him in a witness chair and take his deposition, along with those of any players who were present [since Auriemma’s hiring by USA Basketball in 2009].
“It can be a very nasty business. It [the suit] could be settled before [the London Olympics in August] but it all depends on what USA Basketball and the NBA want to do. I’m willing to have a conversation, but no one has reached out.”"


In other words... if you pay up, all of this will be gone. At least that's how it comes off to me

 

[easttexastrash]

Take a look at these comments from her Lawyer on Altavilla's Blog:

"The lawyer representing NBA security director Kelley Hardwick in her employment discrimination suit against Geno Auriemma, the NBA and USA Basketball said Wednesday a possible trial might not take place for years.
“It could take two to three years for the case to be heard,” said Randolph M. McLaughlin, counsel for the New York law firm Newman Ferrara LLP. “There needs to be a discovery phase, we’ll need to bring Auriemma in, put him in a witness chair and take his deposition, along with those of any players who were present [since Auriemma’s hiring by USA Basketball in 2009].
“It can be a very nasty business. It [the suit] could be settled before [the London Olympics in August] but it all depends on what USA Basketball and the NBA want to do. I’m willing to have a conversation, but no one has reached out.”"


In other words... if you pay up, all of this will be gone. At least that's how it comes off to me

Typically doesn't a civil lawsuit involve money? If Hardwick feels that she was denied promotions and equal pay, what else would she request, a 10 year supply of M&Ms?

If the NBA has a patter of discrimination then the only way to change their ways is to hit them where it hurts, which is in the pocketbook.

 

[UConnCat]

There is no individual liability under Title VII, for discrimination, retaliation, or harassment. Employers are liable through respondeat superior.

The New York statute, in an odd twist, appears to allow claims against individuals for retaliation, but not for alleged discrimination.

Thanks and an interesting distinction which explains, at least in part, why the suit was brought under NY law. A legal question then would be what limits the courts have placed on those individuals who can be held liable under NY law. The case of a supervisor is obvious. What about an independent contractor of an entity that contracts with the plaintiff's employer for security? There's also the issue of how the alleged retaliation adversely affected her employment with the NBA in NY. I'm sure there are lawyers in CT busily researching these issues.

While I'm always interested in the legal issues raised in cases like this, the overriding concern for me is the personal toll this takes on Geno and his family and friends.

 

[Santini35]

Sorry, should have said pay up NOW, before the truth is determined in either direction so you can save face, and all of this will be gone.

 

[Icebear]

It would seem that it is possible that both Geno and the NBA could be independent contractors of USA basketball. I would imagine that defining or establishing the lines of accountability could become very complicated or difficult. Consider if Geno is an independent contractor to USA Basketball then he has no real authority over who they do or do not contract with the NBA to provide a service. He may give an opinion but he is not the one contracting the service.

On the other hand USA Basketball in contracting for security services from the NBA does likely have a right, but maybe not, to give input on how services need to be conducted including personnel based on past performance. Is a condition of security at events an expectation that personnel are to be constantly observant for the potential of threat to the team. If so, it may be the reports of cheering more like coaching is not considered professional performance of security responsibilities because personnel watching a game enough to "coach" it are not paying enough attention to the crowd and the responsibilities of team security work. If so, one would expect that such issues should be delineated somewhere in a job performance report.

 

[Man-Man]

For what it's worth I am confident this won't hurt recruiting one bit.

 

[vtcwbuff]

Due to the various downturns in the economy over the past decade, my Duke Law School degree was no longer sufficient to get me hired as a "waiter" at some of the "better restaurants." As a result, I had to resort to working at one of the biggest firms in the country and now as the Assistant City Attorney for one of the largest cities in the United States.

Yeah, but I bet the tips aren't as good.

 

[JimGunther]

Just FWIW: If Geno suggested Ms. Hardwick NOT accompany "his" team, should it be considered proof of retaliation?

I mean, folks prefer some folks over others. Folks do it all the time - I have a "comfort level" with this Doctor, or that waiter or whatever. Because you prefer to have interaction with one person over another doesn't mean you wish to harm (or sleep with) the other.

Lastly, she still has her job, so, 'kinda hard to demonstrate harm or damages.

 

[Icebear]

Just FWIW: If Geno suggested Ms. Hardwick NOT accompany "his" team, should it be considered proof of retaliation?

I mean, folks prefer some folks over others. Folks do it all the time - I have a "comfort level" with this Doctor, or that waiter or whatever. Because you prefer to have interaction with one person over another doesn't mean you wish to harm (or sleep with) the other.

Lastly, she still has her job, so, 'kinda hard to demonstrate harm or damages.

Bingo.

 

[CamrnCrz1974]

Just FWIW: If Geno suggested Ms. Hardwick NOT accompany "his" team, should it be considered proof of retaliation?

I mean, folks prefer some folks over others. Folks do it all the time - I have a "comfort level" with this Doctor, or that waiter or whatever. Because you prefer to have interaction with one person over another doesn't mean you wish to harm (or sleep with) the other.

Lastly, she still has her job, so, 'kinda hard to demonstrate harm or damages.

To state a prima facie case for retaliation under Title VII (federal law), a plaintiff must demonstrate: (1) that she engaged in a protected activity; (2) that she was subjected to an adverse employment action; and (3) a causal link between the protected activity and the adverse employment action. See Nilsson v. City of Mesa, 503 F.3d 947, 953–54 (9th Cir. 2007). If the plaintiff makes out a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for its actions. Id. at 954. The plaintiff must then produce evidence that the employer’s reason pretextual. Id.

The challenged action must be materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations omitted). The anti-retaliation provision does not protect an individual from all retaliation, only “from retaliation that produces an injury or harm.” Id. at 67.

In the Burlington case, the Supreme Court looked at two questions: first, whether Title VII's anti-retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace; and second, the degree of harm an employee must suffer for an act of retaliation to fall within the provision's scope.

With regard to the first question, the Court recognized that an employer can effectively retaliate against an employee by causing the employee harm outside of the workplace and not only by taking actions not directly related to his or her employment. If the anti-retaliation provision were limited to employment-related actions, the Court said, it would not deter all forms of effective retaliation and would fail to fully achieve the statute's primary purpose of maintaining unfettered access to its remedial mechanisms. Citing cases in which a law enforcement agency refused to investigate death threats against an agent and a car dealership filed false criminal charges against a former employee, the Court concluded that "the anti-retaliation provision, unlike the substantive [anti-discrimination] provision, is not limited to discriminatory actions that affect the terms and conditions of employment."

With regard to the second question, the Court held that a plaintiff "must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."

 

[easttexastrash]

A question at this point is if it is possible that if Hardwick indeed reported an incident in 2009, as she claims, that the NBA never notified USA Basketball and if the recent revelation about the incident was indeed the first time that USAB had any knowledge of the alleged incident. Is it possible that this is all news to them? Had they known of the complaint already would they have supported a request by Geno to have Hardwick removed? Something tells me that if Geno and USAB knew that there was a complaint on file that they probably would have absolutely not touched this with a ten foot pole and just let the Olympics come and go with Hardwick on the security staff.

Another question for those of you closer to the university, has the university made a statement in support of Geno are has there been no statement yet?

 

[UConnCat]

See my previous post about Title VII. It also appears she filed state law claims so Geno could be named individually. Under Title VII, he could not be.

As for compliance with administrative prerequisites, a claimant needs to file a Charge of Discrimination with the Equal Employment Opportunity Commission within 180 calendar days from the day the discrimination took place.

The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency (like the Arizona Civil Rights Division; I practice in Arizona) enforces a law that prohibits employment discrimination on the same basis. Timely filing a charge of discrimination is a prerequisite to filing a private lawsuit. See Fonesca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 845 (9th Cir. 2004).

Hardwick's lawyer was asked by Altavilla about the NY court's jurisdiction over Geno and about why no EEOC complaint was filed. On the personal jurisdiction issue, he said that NY has a "long arm statute" that confers jurisdiction over out-of-state residents "under certain circumstances." Have those circumstances been met in this case? Seems unlikely, but we'll see.

As for the EEOC filing, the lawyer confirmed that under NY law no administrative filing is necessary and the complaint isn't barred by the statute of limitations.

He also said there was a reason no complaint was filed with the Equal Employment Opportunity Commission [EEOC] before the suit was, which is normally customary.

"Under EEOC law, the plaintiff has 300 days after the event of discrimination to file a complaint with the agency to file a suit," McLaughlin said. "But under New York state and New York City law, I don't have to file before an agency. I can go straight to the court and go back three years [bypassing the normal statute of limitations]. I can go all the way back to 2009."

 

[CamrnCrz1974]

As for the EEOC filing, the lawyer confirmed that under NY law no administrative filing is necessary and the complaint isn't barred by the statute of limitations.

He also said there was a reason no complaint was filed with the Equal Employment Opportunity Commission [EEOC] before the suit was, which is normally customary.

"Under EEOC law, the plaintiff has 300 days after the event of discrimination to file a complaint with the agency to file a suit," McLaughlin said. "But under New York state and New York City law, I don't have to file before an agency. I can go straight to the court and go back three years [bypassing the normal statute of limitations]. I can go all the way back to 2009."

Yet another reason this claim was filed under state law in state court, rather than under federal law and/or in federal court.

 

[pap49cba]

Sorry, but this guy sounds like an ambulance chaser....

 

[boontonbomber]

the more i think about this situation , the more troubled i am that , in the end, the real truth will not come out. that is often the case with these things. and that won't
satisfy me. i want to feel confident that geno did not do what hardwick claims he did. and i see no way that that is ever going to happen.