Intentional Torts Sexual Assault

Hardwick v. Geno Auriemma, USA Basketball, and the NBA: Assault, Battery, and Employment Discrimination

The following article was written by Benjamin Haynes, Esq.

USA head coach Geno Auriemma

On June 11th 2012, Kelley Hardwick filed a Verified Complaint with a demand for jury trial against Geno Auriemma, USA Basketball Inc. (USAB) and the National Basketball Association (NBA). The lawsuit was brought under the cause of action for employment discrimination against all three Defendants under the New York State Human Right Law and the New York City Human Rights Law.

The Plaintiff is an African-American woman who is a law school graduate and a former detective for the New York City Police Department. Currently, Kelley is the Director in the Security Department of the NBA. Geno is the Head Coach of the United States Olympic team and the head coach at the University of Connecticut.

Plaintiff traveled with the National Team in October of 2009 (and on several other occasions) and was responsible for providing security oversight for the players. The Plaintiff is alleging that USAB’s coach, Geno Aruiemma, stalked, assaulted, and battered Plaintiff on their trip to Russia in October of 2009. Plaintiff stated that she thwarted off Geno who “Forcibly tried to kiss her on her mouth” outside of her hotel room. Plaintiff alleges that she reacted quickly by shoving him away and stated, “What are you doing? You better check yourself before you get hurt.”

After this alleged incident, Plaintiff states that Defendant Auriemma was then “vincitive” towards her on several different occasions. When Plaintiff returned to the NBA office, she stated that she advised several managers of the incident, including her supervisor, Tolbert. Plaintiff further alleges that Tolbert stated, “Well, these things happen.” Plaintiff claims the NBA did no further investigation. Plaintiff states that she tried to put these things behind her and continue with her position. She traveled on two more trips in which she claims Auriemma continued his vindictiveness.

Plaintiff further alleges that Auriemma wanted the NBA to remove Plaintiff from the Women’s Olympic Team Security assignment for the 2012 London Olympics. On March 24, 2012, Plaintiff alleges that the Senior Vice President of Security advised Cawley that she would not oversee the security for the London Olympics. Plaintiff claims that she had received no prior complaints about her performance and thus believes that the removal was because of Auriemma’s influence.

At the core of the employment discrimination cause of action, Plaintiff claims that she was denied numerous employment opportunities that were made available to her male counterparts who performed similar functions for the NBA Security Department. Plaintiff further states that none of the male managers in the NBA have the same level of experience with the Olympic Games as she does. Further, Plaintiff claims that she has more years of experience providing security with teams sponsored by USA Basketball than any of her male counterparts and is the most senior of the basketball managers

The New York State Human Right Law Executive Law § 296 is as follows:

296-b. Unlawful discriminatory practices relating to domestic workers.

2. It shall be an unlawful discriminatory practice for an employer to:

(a) Engage in unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to a domestic worker when: (i) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (ii) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (iii) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, or offensive working environment.

(b) Subject a domestic worker to unwelcome harassment based on gender, race, religion or national origin, where such harassment has the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, or offensive working environment. (Emphasis added).

Essentially, Kelley is stating that her rejection of Auriemma’s sexual advances has been a basis for the employment decisions by the Defendants. Specifically, Plaintiff is claiming that because of her rejecting Auriemma’s advance, she has not been promoted in her three years of work, and also has been demoted because of her rejection of the Defendant’s sexual advances. If true, this would be in direct violation of the New York State Law.

Further, Plaintiff incorporated that the NBA and USAB condoned, ratified, and acquiesced the foregoing conduct, and is responsible under the doctrine of respondeat superior for the discriminatory acts of its employees. Respondeat superior is a theory that holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency.

Plaintiff is stating that she has suffered emotional distress, humiliation, degradation, and loss of income and the benefits of employment. Plaintiff is seeking compensatory damages, an award of back and front pay, punitive damages, costs, disbursements, expert fees and attorney’s fees, and any and all other injunctive relief that the Court deems just and proper.

Interestingly enough, Kelley was added back to the Security team just days before the team left for the Olympics. Kelley went to London and provided security responsibilities for her third Olympics.

While injunctive relief may be moot in regards to this lawsuit, because Kelley was added back onto the Olympic security team, her requests for compensatory damages still stand. Kelley alleged in her Verified Complaint that her staff person, Rachel Shannon, was present when Auriemma approached them in hotel lobby. If this case makes it to trial, look for Rachel to testify that Auriemma was making advances onto the Plaintiff. While Plaintiff states that she was alone in front of her hotel room when Auriemma allegedly assaulted her, Plaintiff states that Rachel was with her at the beginning of the Auriemma encounter in the hotel lobby. Also, Plaintiff stated in her Verified Complaint that she has a list of witnesses who could corroborate her version of the events.

This case has been quiet due to the timing of this filing just before coach Auriemma left to London to lead the United States Olympic women’s basketball team to another gold medal. Now, the Plaintiff will be looking for a response from the Defendants on the above matter. Auriemma has verbally replied to these allegations in a statement on CNN, stating that these allegations are “beyond false.”

It will be difficult for the Plaintiff to prove that there was a direct correlation between Auriemma’s alleged assault, and the alleged discrimination. From the pleading itself, it doesn’t seem that there is specific evidence to connect the two, but speculation as to who was getting promoted and how. For instance, Plaintiff claimed that the facilities security assignment was given to a male colleague who had received several promotions. In the following paragraph, Plaintiff states that she then asked her supervisor for a promotion, and received one. However, Plaintiff claims that with the promotion, she did not receive an increase in compensation. Yet nowhere in the Complaint is there any allegation stating that the males who received promotions also received raises. This is an example of the speculation in the Complaint. In order to succeed on an employment discrimination claim, one must show sufficient and concrete evidence. Speculation will not suffice.

While the USA Women’s basketball team placed Kelley back on the Security Team that traveled to the Olympics, it would be extremely presumptuous to label such as an admission of guilt. We will have to wait and see the Defendants’ answers first.

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