2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 1 of 15 Pg ID 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

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1 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 1 of 15 Pg ID 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN VINCENT WORTMANN Plaintiff vs Case No:2:13-cv Judge: HON. ANN ARBOR PUBLIC SCHOOLS, PCMI, a Michigan corporation, PATRICIA GREEN, DOTTIE DAVIS, CORY GILDERSLEEVE, and DAVID COSMA, As to each individual defendant, individually and in their respective official capacities, and as to all defendants, jointly and severally Defendants / COMPLAINT AND JURY REQUEST Plaintiff, by his attorney Jeffrey L. Herron, for his Complaint against the above Defendants states: JURISDICTION AND PARTIES 1. This is an action to enforce civil rights arising out of Plaintiff s employment at a public school district and its contractor, pursuant to 42 USC 1983 et seq. Supplemental state law claims are brought for statutory discrimination on the basis of race are pursuant to Michigan s Elliot Larsen Civil Rights Act, MCL et seq., as amended ( ELCRA ), as well as common law claims for defamation and intentional infliction of emotional distress 2. This court has jurisdiction pursuant to 42 USC 2000e-5 and 28 USC 1331, 1343(4). 1

2 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 2 of 15 Pg ID 2 3. Plaintiff is a resident of the State of Michigan, and at times relevant to this complaint resided in the Eastern. 4. Ann Arbor Public School District ( AAPS ) is a body politic and corporate organized under the Constitution and statutes of the State of Michigan that maintains its principal place of business in the Eastern District. AAPS is a municipality for purposes of Section PCMI is a corporation organized under the laws of the State of Michigan, conducts business in the Eastern District of Michigan, and maintains its principal place of business in the Western District of Michigan. 6. Defendant Patricia Green is a resident of the State of Michigan, residing in the Eastern District. 7. Defendant David Cosma is a resident of the State of Michigan, residing in the Eastern District. 8. Defendant Dottie Davis is a resident of the State of Michigan, residing in the Eastern District. 9. Defendant Cory Gildersleeve is a resident of the State of Michigan, residing in the Eastern District. 10. The events giving rise to this cause of action occurred in the Eastern District of Michigan, in Washtenaw County. BACKGROUND FACTS 11. Plaintiff is a former high school and college football player. He played high school football at a high school operated by AAPS. 2

3 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 3 of 15 Pg ID In or about 2009, Plaintiff was employed by AAPS as an assistant coach. 13. In or about 2011, AAPS outsourced its assistant coaching positions, delegating certain human responsibilities to PCMI. 14. Thereafter, Plaintiff s direct employment by AAPS ended, and Plaintiff became an employee of PCMI, assigned by PCMI to work as an assistant football coach for AAPS at its Pioneer High School ( Pioneer ). 15. During the 2012 high school football season, Plaintiff was assigned to serve as an assistant coach at Pioneer, where he served under the supervision and direction of then head coach Paul Test, and Pioneer Athletic Director Eve Claar. 16. On October 12, 2013, Pioneer played a football game against rival AAPS Huron High School ( Huron ). At the time of the game, Gildersleeve was the Huron head football coach and Davis was and remains the Huron Athletic Director. 17. Pioneer defeated Huron. 18. During the game, Pioneer developed a lead, and began substituting second and third string players for its starters. Pioneer s lead continued to expand. 19. During the fourth quarter of play, numerous personal fouls were called. 20. During the fourth quarter, Gildersleeve became upset with the plays being run by Pioneer; in particular he was upset by passing plays by Pioneer when Pioneer held a large lead. 3

4 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 4 of 15 Pg ID Gildersleeve became visibly upset and animated on the Huron sidelines, and verbally engaged the Pioneer coaching staff by shouting across the field and yelling obscenities. 22. Gildersleeve s unprofessional and inappropriate behavior fueled the passions of his players, and contributed to increased aggression by players on the field. 23. At the conclusion of the game, Plaintiff lined up with the Pioneer players for the traditional post-game handshake between teams at midfield. He calmly and politely began shaking hands with Huron players, including a warm embrace for a former Pioneer player who had transferred schools and was then playing for Huron. 24. Pioneer coach Test moved towards midfield and extended his hand to Gildersleeve. Test apologized to Gildersleeve for late passing plays which had been called by a Pioneer assistant coach while a substitute quarterback was in the game. 25. Test had realized that the passing plays were upsetting the Huron coaching staff, and the outcome of the game was determined. Test gave instructions to refrain from additional passing plays, and his team ran out the clock by taking knee. 26. Despite Tests apology and good will gesture of extending his hand for a handshake, Gildersleeve was enraged and began shouting obscenities. He grasped Test s hand and would not release Test. Gildersleeve then began 4

5 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 5 of 15 Pg ID 5 pushing Test, who is physically much smaller, with his forearm and upper body, moving Test backwards while continuing his loud and profane tirade. 27. Gildersleeve still would not release Test and showed no signs of ending his physical assault on Test. 28. Gildersleeve s assault on Test occurred away from the lines of players and coaches engaged in the post-game handshakes. 29. Plaintiff became aware of Gildersleeve s assault on Test on hearing Gildersleeve s tirade and turning to see what was occurring. On seeing the assault underway, Wortmann left the handshake line and moved toward the two head coaches to defend Test against further and potentially more violent physical action by Gildersleeve. 30. As Plaintiff was leaving the handshake line, and before Plaintiff reached the site of the Gildersleeve assault, fighting began between Huron and Pioneer players. 31. At the time fighting among players began, Plaintiff had not yet reached the site of the Gildersleeve assault, and had not yet taken action to defend Test from the ongoing assault. 32. If the players fighting was influenced by the behavior of any coaching staff from either school, it was the unprofessional behavior of Gildersleeve, who by his behavior during the game, and his verbal and physical assault on Test after the game set a grossly unsportsmanlike example. 5

6 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 6 of 15 Pg ID When Plaintiff reached the site of the assault, he separated Gildersleeve from Test using only limited and necessary force to protect Test, to wit, Plaintiff pushed Gildersleeve, once, to separate him from Test. 34. Plaintiff did not hit or strike Gildersleeve or anyone else following the game. 35. After Plaintiff protected Test, Gildersleeve directed his verbal onslaught towards Plaintiff. Plaintiff responded verbally. Both men were loud. Both men used profane language. 36. While Plaintiff was protecting Test and ending the Gildersleeve assault, other fights broke out among players from the two schools, and the scene on the field degenerated into a full scale brawl. 37. Game officials, coaches, AAPS officials (including Davis), and police worked to calm the scene and restore order, and were successful in doing so. No serious injuries resulted, though at least one player suffered a laceration to his face. 38. As the Gildersleeve assault occurred, Davis approached the site of that assault. 39. At no time did Plaintiff make physical contact with Davis. Plaintiff did not hit, push, shove or otherwise strike Davis. 40. After the game and brawl ended, AAPS officials began a review of the events to determine what occurred and to consider disciplinary action. 41. During the initial review by AAPS officials, Davis falsely accused Plaintiff of pushing or striking her during the brawl. Davis knew at the time she made the allegation that is was false. 6

7 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 7 of 15 Pg ID As a direct result of Davis knowingly false statement about Plaintiff, AAPS suspended him from his assignment as a Pioneer assistant coach. The decision was communicated to Plaintiff by Pioneer athletic director Claar. 43. As the AAPS investigation of the on-field incidents continued, Davis repeated her false allegation regarding Plaintiff. She did so even though witnesses to the Gildersleeve assault, to Plaintiff s defense of Test, and to the aftermath disputed her account, and pointed out to her that the alleged physical contact by Plaintiff did not occur. 44. AAPS later terminated Plaintiff s assignment as an assistant coach. 45. The investigation of the incident and the decision to suspend and terminate Plaintiff was made by officials of AAPS, and only afterwards communicated to PCMI. 46. The fact of Plaintiff s suspension was communicated to the public and the media by AAPS soon after he was suspended. 47. During the course of the investigation by AAPS, Gildersleeve repeatedly denied pushing or shoving Test, and denied making physical contact with Test. 48. The fact of Plaintiff s termination was communicated to the public and to the media by Green is a statement posted on the AAPS website. 49. Green s statement indicated that an assistant coach, referring to Plaintiff, had been terminated for becoming physical during a verbal altercation between the two head coaches. 7

8 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 8 of 15 Pg ID Green and other AAPS officials, including Davis and Gildersleeve, knew at the time the statement was made that it was false, to wit that the head coaches were engaged in a physical altercation as a result of Gildersleeve s unwarranted and unprovoked physical assault on Test, and not merely a verbal altercation. Alternatively, and without averring that Plaintiff was or was not a public figure, Green and such other AAPS officials acted with reckless disregard to the truth or falsity of the statement. 51. Green also stated that the players fighting occurred following Plaintiff s actions, when in fact fighting among players started before Plaintiff took action to defend Test. Video evidence available to and reviewed by AAPS senior officials clearly showed this to be the case. 52. As a result of the on-field incident, local law enforcement initiated investigations into the incident. Several black players where charged criminally. Although players of other races were involved in the altercation were publically and openly fighting, only black players were criminally charged. 53. On information and belief, during the course of the police investigation one or more AAPS officials repeated Davis allegation that Plaintiff had made physical contact with her during the Gildersleeve assault and its aftermath. 54. Aware that Davis had made a false allegation against him, for months Plaintiff lived in constant fear that he would be arrested and charged at any time. 8

9 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 9 of 15 Pg ID During the course of the investigation by local law enforcement officials, Davis finally admitted that she had no knowledge of Plaintiff making physical contact with her. 56. The Washtenaw County prosecuting attorney s office declined to file charges against Plaintiff, after determining that Plaintiff used limited and reasonable force in the belief that he was defending another person (Test). 57. At no time did Green or any other official of AAPS or PCMI retract Plaintiff s suspension, termination, or any prior statement or other action about or concerning Plaintiff. 58. Plaintiff is a black man. Gildersleeve, Test, Davis, and Green are white. 59. Gildersleeve and Test received only short-term suspensions for their respective roles in the incident. 60. On information and belief, Plaintiff, a black man, was the only adult to be terminated from employment or contractual assignment by AAPS. 61. At the time Green made her statement, Plaintiff s identity as the assistant coach involved and terminated was known to the public because of a) their attendance at the game and witnessing Plaintiff s actions, b) statements made through AAPS communications, and/or c) reporting of Plaintiff s identity by the media, including but not limited to reporting in the online and print editions of AnnArbor.com. 62. Plaintiff requested an opportunity from AAPS to present his side of the story, hear the alleged evidence against him, and to clear his name. Initially Plaintiff 9

10 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 10 of 15 Pg ID 10 made the request to Pioneer Athletic Director Claar, who instructed him to take the matter up with Cosma. 63. Cosma and AAPS refused to provide a post-termination hearing for Plaintiff. 64. After AAPS terminated Plaintiff s assignment, PCMI terminated Plaintiff s employment for alleged lack of work. 65. Plaintiff requested an opportunity from PCMI to present his side of the story, hear the alleged evidence and clear his name. 66. PCMI refused to provide a post-termination hearing for Plaintiff; both after AAPS terminated his assignment and after PCMI terminated his employment. 67. During the course of requesting a post-termination hearing, Plaintiff alerted PCMI to his concerns that AAPS actions were racially motivated. 68. PCMI, pursuant to its agreement with and custom, practice, and policies with AAPS, took no independent action to investigate the incident, AAPS denial of Plaintiff s due process, or AAPS adverse employment actions against Plaintiff, including no action to investigate the role race played in AAPS and the individual Defendants actions towards Plaintiff s. 69. On information and belief, PCMI accepted without question the decisions of AAPS and the individual Defendants. COUNT I SECTION LIBERTY INTEREST 70. Plaintiff incorporates by reference paragraphs 1 through Defendants are each state actors. 10

11 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 11 of 15 Pg ID Plaintiff enjoys a constitutionally protected liberty interest in his reputation, good name, honor, and integrity. This interest is protected by the 14 th Amendment to the U.S. Constitution. 73. By their actions, Defendants deprived Plaintiff of his liberty interest without due process. 74. Defendants actions were intentional, with reckless indifference to Plaintiff s rights and sensibilities. 75. Defendants published the fact of Plaintiff s suspension and termination to third parties, including but not limited to, district-wide communications to parents, students, faculty and staff of AAPS. 76. The allegations underlying Plaintiff s suspension and termination were false. 77. Plaintiff s State law remedies are inadequate. 78. Plaintiff s rights to due process were well established under the law and any reasonable official at a public school district would have been aware of those rights. 79. Defendants AAPS and PCMI acted pursuant to official custom and practice, as evidenced by the terms of the contractual agreement between them, as implemented by AAPS and PCMI, and, on information and belief, in keeping with PCMI s actions interpreting similar agreements with other public employers for whom PCMI provide employees under a contractual basis. 80. Defendant Green was, at the time of her statements and actions, the highest ranking official of AAPS. 11

12 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 12 of 15 Pg ID Defendant Cosma was, at the time of his actions, the Deputy Superintendent for Human Resources of AAPS and the highest serving human resources official of AAPS. 82. Defendant Davis was, at the time of her statements and actions, a senior executive at AAPS. 83. As a direct and proximate result of Defendant s wrongful acts and omissions, Plaintiff has sustained loss of earnings, earning capacity, and fringe benefits and has suffered mental anguish, physical and emotional distress, humiliation and embarrassment, and loss of professional reputation. COUNT II DISCRIMINATION - RACE (ELCRA) 84. Plaintiff incorporates by reference paragraphs 1 through PCMI and AAPS are each an employer of Plaintiff for purposes of Michigan s Elliot Larsen Civil Rights Act ( ELCRA ). 86. Plaintiff s race was a factor that made a difference in Defendants decisions to subject him to the wrongful and discriminatory treatment described above. 87. Defendants Green, Cosma, and Davis were, at all relevant times, senior officers and managers of AAPS, and were disposed to discriminate on the basis of race and acted in accordance with that predisposition. 88. Defendants actions were intentional, with reckless indifference to Plaintiff s rights and sensibilities. 89. If Plaintiff had been Caucasian, he would not have been treated in the manner described. 12

13 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 13 of 15 Pg ID As a direct and proximate result of Defendants wrongful acts and omissions, Plaintiff has sustained loss of earnings, earning capacity, and has suffered mental anguish, physical and emotional distress, humiliation and embarrassment, and loss of professional reputation. COUNT III DEFAMATION 91. Plaintiff incorporates by reference paragraphs 1 through Defendant Green s statements alleged above were false. At the time she made them she knew they were false or acted with reckless disregard for the truth or falsity of her statements. 93. Defendant Davis statements alleged above were false. At the time she made them she knew they were false or acted with reckless disregard for the truth or falsity of her statements. 94. Defendant Gildersleeve s statements alleged above were false. At the time he made them he knew they were false or acted with reckless disregard for the truth or falsity of his statements. 95. The statements by Defendant Green, Davis and Gildersleeve defamed Plaintiff. In the case of Defendant Gildersleeve, his denials of making physical contact with Test defamed Plaintiff by innuendo, and they clearly implicated that Plaintiff was the aggressor, rather than the actual facts which was that Plaintiff was lawfully using reasonable force in defense of Test. 96. The averments above regarding Defendants knowledge of falsity or reckless disregard of the truth or falsity of their statements do not constitute an averment regarding whether Plaintiff was a public figure. 13

14 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 14 of 15 Pg ID Defendants published their respective defamatory statements as alleged above. 98. As a direct and proximate result of Defendants defamatory statements, Plaintiff has sustained loss of earnings, earning capacity, and has suffered mental anguish, physical and emotional distress, humiliation and embarrassment, and loss of professional reputation. COUNT IV INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 99. Plaintiff incorporates by reference paragraphs 1 through Defendants conduct was intentional Defendants conduct was extreme, outrageous, and of such character as not to be tolerated by a civilized society Defendants conduct resulted in severe and serious emotional distress As a direct and proximate result, Plaintiff has suffered irreparable harm, injury, and damages, including but not limited to, monetary damages, loss of career opportunities and earning capacity, mental and emotional distress, anxiety and mental anguish, humiliation and embarrassment; and loss of personal and professional reputation. RELIEF REQUESTED PLAINTIFF REQUESTS that this court enter judgment against Defendants, jointly and severally, to the extent permitted by law, as follows: 1. Legal relief a. a judgment for lost wages and benefits, past and future, in whatever amount he is found to be entitled 14

15 2:13-cv GCS-DRG Doc # 1 Filed 10/15/13 Pg 15 of 15 Pg ID 15 b. compensatory damages in whatever amount he is found to be entitled c. punitive and exemplary damages commensurate with the wrong and Defendants ability to pay d. an award of interest, costs, and reasonable attorney fees 2. Equitable relief a. an order reinstating Plaintiff to the position he would have held if there had been no violation of his constitutional rights or no acts of discrimination by Defendants. b. preliminary and final injunctive relief as deemed warranted by the Court, c. an injunction prohibiting any further acts depriving Plaintiff or others of their constitutionally protected rights any further acts of discrimination by Defendants, and prohibiting Defendants from retaliating against Plaintiff. d. whatever other equitable relief appears appropriate at the time of trial JURY REQUEST Plaintiff requests a trial by jury. Dated: October 15, 2013 Respectfully submitted, /s/ Jeffrey L. Herron Jeffrey L. Herron (P38058) Attorney for Plaintiff 212 E. Huron St. Ann Arbor, MI (734)