A federal judge is criticizing the University of Colorado Boulder for its actions regarding Pamela Fine, who filed a lawsuit last year over abuse allegedly suffered at the hands of former assistant football coach Joe Tumpkin. But he's also ordered CU Boulder and its employees to be dropped from the complaint.
The ruling, accessible below along with the original suit, frustrates attorney Peter Ginsberg, who represents Fine.
"We are obviously disappointed," Ginsberg notes via email. "The court wrote that the law has not caught up to the social issues presented by this case. We respectfully disagree that the law cannot hold people responsible for their willful failure to protect others who are being abused or control abusers under their supervision."
CU Boulder spokesman Ryan Huff has a very different view of the opinion offered by U.S. District Court Judge William J. Martinez.
In a statement, Huff writes, "We believe that Judge Martinez correctly recognized our employees did not violate the law and that there was no legal basis for the claims against them."
In early 2017, Tumpkin was charged with five felony second-degree-assault counts and three misdemeanor third-degree-assault beefs in connection with what Fine calculates as more than 100 instances of abuse. Then, that September, she sued Tumpkin, as well as head football coach Mike MacIntyre, athletic director Rick George, chancellor Phil DiStefano and president Bruce Benson (who last week announced that he will retire from the position in 2019).
As Ginsberg told us last year, Fine "went back and forth for quite a while" regarding the decision to sue under her own name. "But ultimately, Pam decided she didn't want to be intimidated any longer, and she felt that she could better serve as a role model by taking a strong and, I think, quite brave stand."
The suit makes plenty of powerful statements, too. Not only does it castigate Tumpkin for his behavior, but it holds MacIntyre and company responsible for bungling the matter in ways that mirror past mistakes made by CU Boulder, as outlined in a section titled "The University’s History of Mishandling Sex-Based Harassment and Assault."
CU essentially acknowledged errors in the case circa June 2017, when DiStefano was suspended for ten days and both MacIntyre, to whom Fine first reached out, and George were ordered to make $100,000 donations to a domestic-violence fund.
The suit is summarized like so: "By this action, Plaintiff seeks to recover for injuries she sustained as a result of Defendants’ wrongdoing, including, inter alia, Tumpkin’s physical, psychological and verbal abuse of Plaintiff, Tumpkin’s supervisors’ disgraceful reaction and inaction following learning of Tumpkin’s abuse of Plaintiff and the danger he posed to Plaintiff as well as to the entire University community and beyond, and all Defendants’ willful and wanton lack of care, including MacIntyre’s decision, rather than to protect Plaintiff once she notified him of Tumpkin’s abuse, instead to cover up the abuse, protect his football program and, in doing so, jeopardize Plaintiff’s safety and well-being, all with the knowledge and complicity of the other Defendants. Individually and collectively, Defendants placed their concern for the University’s football program, post-season bowl prospects, post-season coaching awards, and reputational interests of the University Athletic Program before and above their legal and ethical obligations owed to Plaintiff."
More evidence that the suit pulls no punches comes in a section that outlines past embarrassments at the university. Central among them was the so-called CU recruiting scandal, which resulted in the school agreeing to pay $2.85 million to two women, Lisa Simpson and Anne Gilmore, whose claims of having been sexually assaulted in 2001 led to years of terrible publicity for the school and the departures of head football coach Gary Barnett and CU president Elizabeth "Betsy" Hoffman.
Years later, the inquiry also revealed a prior investigation of current Denver Broncos coach Vance Joseph.
Even more interesting is a list of happenings over the past decade or so "in which sex-based harassment and assault occurred outside the Athletic Department and was mishandled," the suit allows. Below, read about ten incidents, many of which received relatively little attention, especially in comparison with the Simpson-Gilmore matter:
A. In 2006, a female student reported to a University employee that she had been sexually assaulted. The University employee did not report the alleged assault to any University officials.
B. In 2007, a University faculty member reported race-based and gender-based discrimination to the Dean, who failed to report the allegations to the OIEC [Office of Institutional Equity and Compliance].
C. In 2009, two female University students reported concerns of sexual harassment by their supervisor to a male faculty member, who was unresponsive, told them there was “no issue,” and failed to report the allegations to the OIEC.
D. In 2010, a female University employee was harassed by a male University employee about her disability. A supervisor saw the harassment, did not intervene, and did not report the incident to the OIEC.
E. Also in 2010, a University student-employee reported to her supervisor that she felt sexually harassed by a manager. The supervisor did not report her allegations to the OIEC.
F. Again in 2010, despite previously having been disciplined for a failure to report an incident to the OIEC, a supervisor did not report a student-employee’s allegation that she felt sexually harassed by a manager for over a year.
G. In 2013, a University supervisor made harassing comments about an employee’s race, color and national origin and then fired him after he complained to a higher office. The University employee who received the employee’s complaint failed to file a report with the OIEC.
H. Also in 2013, a University student reported gender-based and sexual-orientation-based harassment by another student to a University employee who did not effectively address the alleged harassment or report the issue and then retaliated against the student.
I. Again in 2013, a University employee became aware of rumors that another employee was being subjected to sexual harassment in November, but did not report it to the OIEC until the following February.
J. In 2013, Sarah Gilchriese, a female University student, filed a grievance against the University under Title IX for delaying and insufficiently sanctioning a male student who sexually assaulted her. Gilchriese’s Complaint sparked a federal investigation into the way the Boulder campus sanctions sexual violence and otherwise handles sexual violence complaints.
This roster didn't convince Judge Martinez that MacIntyre, George, DiStefano, Benson or the university itself should remain targets of the suit.
"The law does not always require that people with knowledge of bad acts take action," he maintains. "Indeed, requiring action under the circumstances alleged would be a drastic expansion of Colorado tort law and could have unintended consequences. For instance, there would be paradigm shift in employment and tort law if the law compelled an employer upon a report from a third party of wrongdoing by an employee entirely unrelated to the position, to take disciplinary action against the employee in order to avoid liability for emotional distress damages."
Still, Martinez clearly doesn't want his order to be seen as an endorsement of the actions taken, or not taken, by the university and its charges.
"The court is concerned...about the apparent reluctance of the University and its senior athletic staff to take substantial steps to address Plaintiff’s allegations until they were publicly reported," the emphasizes. "The court’s concerns are redoubled given the context of the emerging national conversation exposing wrongdoers (usually, but not always, male) who use positions of power to dominate and control subordinate individuals (usually, but not always, female)."
Nonetheless, he goes on, "the reality is that courts of law intentionally move more slowly than the court of public opinion. At present, Plaintiff’s claims against Moving Defendants have no basis in the law. Plaintiff may seek redress only against her abuser under civil and criminal laws of Colorado."
In other words, Tumpkins remains on the hook, but CU Boulder is off it from a legal standpoint.
The appearance of impropriety is another matter, though, which is why spokesperson Huff points out that "in the past year and a half, we have advanced our commitment to preventing sexual misconduct, improved our policies and trainings and promoted a culture that respects and values all of our students, faculty and staff."
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