Vous êtes sur la page 1sur 46

Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 1 of 46

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;
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 2 of 46

(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.

-2-
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 3 of 46

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.

-3-
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 4 of 46

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

-4-
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 5 of 46

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

-5-
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 6 of 46

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

-6-
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 7 of 46

(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

-7-
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 8 of 46

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

-8-
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 9 of 46

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

-9-
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 10 of 46

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.

- 10 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 11 of 46

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.

- 11 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 12 of 46

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.

- 12 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 13 of 46

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).

- 13 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 14 of 46

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).

- 14 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 15 of 46

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

- 15 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 16 of 46

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).

- 16 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 17 of 46

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

- 17 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 18 of 46

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

- 18 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 19 of 46

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).

- 19 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 20 of 46

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).

- 20 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 21 of 46

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).

- 21 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 22 of 46

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.”

- 22 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 23 of 46

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

- 23 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 24 of 46

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.

- 24 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 25 of 46

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.

- 25 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 26 of 46

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

- 26 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 27 of 46

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

- 27 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 28 of 46

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.

- 28 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 29 of 46

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.

- 29 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 30 of 46

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

- 30 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 31 of 46

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.

- 31 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 32 of 46

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.

- 32 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 33 of 46

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.

- 33 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 34 of 46

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.

- 34 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 35 of 46

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.

- 35 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 36 of 46

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

- 36 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 37 of 46

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,

- 37 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 38 of 46

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.

- 38 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 39 of 46

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.

- 39 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 40 of 46

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,

- 40 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 41 of 46

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

- 41 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 42 of 46

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

- 42 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 43 of 46

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.

- 43 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 44 of 46

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;

- 44 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 45 of 46

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
cvictor@victorfirm.com

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.

- 45 -
Case 1:09-cv-10427-TLL-CEB Document 1 Filed 02/03/2009 Page 46 of 46

/s/ Cindy Rhodes Victor___________


CINDY RHODES VICTOR (P33613)
The Victor Firm, PLLC
35801 Mound Road
Sterling Heights, Michigan 48310
(586) 274-9600
cvictor@victorfirm.com

Attorneys for Plaintiff


Dated: February 3, 2009 Brooke Elizabeth Heike

- 46 -