Westminster Lawsuit
Westminster Lawsuit
WESTMINISTER COLLEGE, a
Judge
Utah Corporation and Institution of
Higher Education
Jury Trial Requested
Respondent.
DALE H BOAM, P.C., and for her claims for relief against Defendant
PRELIMINARY STATEMENT
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 2 of 28
communication.
2
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 3 of 28
place.
least 100 feet from the Plaintiff (under the reasoning that the
concern.
3
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 4 of 28
disability.
10. This Court has subject matter jurisdiction of this matter pursuant to
11. Venue of this action lies in this Court pursuant to 28 U.S.C. §1391,
of this Court.
4
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 5 of 28
FACTS
12. Ms. Flavin is an elite level lacrosse player. She was All Region
her junior year, 2nd team all-State her senior year and a member
of the U17 Utah lacrosse team (only 23 players from Utah were
selected). Moreover, she was only Deaf player in the state of Utah.
13. Ms. Flavin excels academically maintaining high marks and honors
14. Ms. Flavin was highly sought after by colleges and universities for
16. Ms. Flavin is Deaf and unable to speak verbally. Ms. Flavin
special” for him for his birthday. Ms. Flavin assumed he meant
kissing. Soon the Perpetrator took Ms. Flavin to her bedroom and
forced himself upon her. Ms. Flavin pushed him away and through
5
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 6 of 28
made it very clear that she I did not want to have sex with him. The
19. After this event the Plaintiff broke off all relationship with the
Perpetrator.
20. The Plaintiff felt guilt and shame over the sexual assault
perpetrated against her and kept the events hidden from her family
and friends.
21. Moreover, the Plaintiff knew that reporting the incident and the
22. Later in the same year the Plaintiff was attending an event at a
local high school, as she was walking down the hall someone
grabbed her arm and as she turned to look she saw it was the
attack. Seeing that the Plaintiff was in distress a friend forced the
Perpetrator to let go of the Plaintiff’s arm and the Plaintiff ran and
hid.
6
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 7 of 28
23. At the insistence of her friend the Plaintiff Ms. Flavin finally told
24. Ms. Flavin’s father, Michael Flavin, supported her in reporting the
events to the police and Ms. Flavin began to receive therapy and
counselling.
26. Upon graduating from high school, the Plaintiff, a gifted student
Utah.
7
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 8 of 28
28. In addition to the benefits stated, Ms. Flavin’s head coach from
Ms. Flavin and provided extra time and mentorship so Ms. Flavin
could live her dream of being a Women’s Lacrosse player and take
Westminster.
29. However, in August 2017, the Plaintiff learned that shortly after
30. Upon learning that the Perpetrator would follow her to Westminster
all of the shame, guilt, and fear the Plaintiff felt in 2014 came
rushing back.
31. The Plaintiff then learned that the no-contact order issued as a
8
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 9 of 28
near her home, school, car, etc. On August 10, 2017, the court
at least 100 feet away from the Plaintiff at all times and must to
34. All history and documentation of the court case and orders were
35. The Plaintiff began to feel a measure of relative safety after being
9
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 10 of 28
the dorm Ms. Flavin was assigned. Ms. Flavin’s dorm assignment
was based on her dorm being the only on-campus housing having
accommodated.
face.
40. When Plaintiff and her father brought these issues to the
position that they could not disrupt the Perpetrator’s privacy. They
although the dorm buildings are little more that arms-length from
10
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 11 of 28
each other, and have windows that look into each other, the
housing unit is over 100 feet. The sidewalk, not the physical dorm
rooms.
Ms. Flavin has placed her in proximity of less than one hundred
feet from the Perpetrator. Each incident has been played off as
Perpetrator.
11
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 12 of 28
44. For example, Westminster scheduled both the Plaintiff and the
When the meeting was over the Plaintiff realized the Perpetrator
Flavin complained her physical was rescheduled to the time set for
46. The Plaintiff has felt trapped by the Perpetrators presence at other
12
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 13 of 28
48. When the Plaintiff and her father brought these and similar
in place for a student who is Deaf, and cannot call using the
accessible communication.
50. When the Plaintiff and her father explained this to Westminster
their solution was for the Plaintiff to contact the Salt Lake City
51. Furthermore, the option of only calling the police leaves her
13
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 14 of 28
condition and subject to higher risks to her safety than her non-
slept in her dorm, attended few school activities, and had a harder
and harder time being on campus let alone attend class. She was
14
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 15 of 28
55. As of the date of this Complaint the Perpetrator has not agreed to
56. Despite the Plaintiff virtually begging for simple safety procedures
downplay her concerns and ignore her rights under both Title IX
58. When she withdrew she lost the benefit of her scholarships and
has had to transfer to another college with all the costs involved.
Mr. Flavin recently sold his house and moved to a small condo in
15
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 16 of 28
scholarships.
59. Moreover, Ms. Flavin’s goals to play for Westminster have been
derailed and she has had to start over with a new team and has to
60. Ms. Flavin would return to school and the sport she loves but for
Deaf
COUNT I
Title IX-20 U.S.C. § 1681 et seq.
Clearly Unreasonable Response, Sex Discrimination
fully herein.
16
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 17 of 28
thereof; the fact that the Perpetrator was actually on-campus and
temporary stalking order almost any time they were both present in
prohibited from leaving the sidewalks nor are there any penalties
17
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 18 of 28
the temporary stalking order; and, that the Plaintiff left school by
Title IX.
65. The risks to Plaintiff’s safety, the loss of her ability to continue
18
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 19 of 28
regarding Title IX, as well as the legal requirements of Title IX; and
19
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 20 of 28
anxiety and trauma; lost future earnings and earning capacity; the
undergraduate education.
COUNT TWO
Title IX-20 U.S.C. § 1681 et seq.
Hostile Education Environment, Sex Discrimination
fully herein.
70. Title IX provides, in relevant part, that “[n]o person in the United
20
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 21 of 28
assistance.”
safety, including, but not limited to: (i) excluding her assailant from
strict protocols requiring that the not come within a certain distance
counsel staff that the value of a male athlete does not trump the
21
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 22 of 28
Plaintiff was forced to leave the school and lost her educational
benefits.
opportunities.
22
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 23 of 28
COUNT THREE
Title IX-20 U.S.C. § 1681 et seq.
Retaliation
fully herein.
23
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 24 of 28
distress, fear, anxiety and trauma; lost future earnings and earning
undergraduate education.
82. The Plaintiff has been forced to engage the services of an attorney
and any other damages that the court sees fit and equitable.
COUNT FOUR
Section 504 - 29 U.S.C. § 794a et seq.
Discrimination Based on Disability
fully herein.
Section 504 and its regulations by: (1) denying the Plaintiff the
24
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 25 of 28
tend to screen the Plaintiff out by reason of her Deafness, and (7)
setting.
policies and practices in order to comply with Section 504 and its
regulations.
25
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 26 of 28
86. The acts or omissions of the Defendant (or its agents) caused and
87. Plaintiff has incurred actual costs and real financial losses
of compensatory damages.
26
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 27 of 28
88. The Plaintiff has been forced to engage the services of an attorney
and any other damages that the court sees fit and equitable
27
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 28 of 28
(g) Award the Plaintiff any and all other monetary damages that may
be available under law or equity including punitive damages in an
amount to be determined if allowed by law;
(i) For such other and further relief (both under law and under the
Court’s broad equitable jurisdiction) deemed appropriate by the
Court.
28
Case 2:18-cv-00186-DB Document 2-1 Filed 02/28/18 Page 1 of 2
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
(b) County of Residence of First Listed Plaintiff Salt Lake County County of Residence of First Listed Defendant Salt Lake County
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Law Offices of Dale H Boam P.C.
4776 South Wander Lane, Salt Lake City Utah 84117
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.