Friday, November 27, 2020

MSU files motion to dismiss complaint in former MSU sprinter case

October 15, 2020
<p> The Hannah Administration Building on Aug. 23, 2019, in East Lansing.  </p>

The Hannah Administration Building on Aug. 23, 2019, in East Lansing.

Photo by Sylvia Jarrus | The State News

Michigan State University filed a motion to dismiss a complaint regarding sexual assault from a former MSU track athlete Monday.

The original complaint said the plaintiff was sexually assaulted by another athlete on the track and field team. She then reported the assault to one of her track coaches, Yolanda Johnson, on March 7, 2017. Johnson then reported the incident to MSUPD and the survivor was interviewed by MSUPD later that day.

The survivor's testimony said after her interview with MSUPD, other members on the team approached her and said she would "suffer adverse consequences" if she pursued a complaint.

As a result, the student-athlete denied any further participation in an investigation and declined to pursue an internal MSU complaint. According to court documents, she did not report this to anyone or that MSU had any knowledge of the assault before the lawsuit was filed.

In May of 2017, coach Yolanda Johnson told the survivor she would have to switch from running sprints to middle-distance races if she wanted to remain on the team, according to the court document. She implied but did not allege that this request to switch was made to accommodate the reported abuser. However, as set forth in the declaration of head coach Walter Drenth, that inference would be false, and that her alleged abuser was suspended from the team shortly after she reported the assault and did not return to the team. The decision to move her was solely on her performance as a runner, the document said.

She chose not to remain on the team as a middle-distance runner and transferred to Grand Valley State University the following year to pursue sprinting.

The student-athlete then filed a suit against MSU as part of a larger set of lawsuits against the NCAA involving at least two other institutions. The lawsuit involved a potential failure to uphold Title IX regulations after the alleged sexual assault in March 2017. According to the lawsuit, MSU never provided her with an explanation of her rights under Title IX or that she had a right to interim measures of action even if she didn’t wish to pursue a Title IX investigation.

The recent motion filed by MSU claims that the lawsuit should be dismissed because the Title IX claim is barred by the statute of limitations, and that the Title IX peer-on-peer harassment claim is barred by Kollaritsch.

"Basically, there's another case that came out last year, it's called the Kollaritsch case," Attorney Karen Truszkowski said. "Kollaritsch says essentially that if you are assaulted, raped, whatever, one time, unless you are assaulted a second time, then you don't have any viable action against the university for not acting appropriately or not responding appropriately ... so because of that case, MSU, their position is that like someone like Emma Roedel , she was not assaulted a second time. So based upon that, they're asking for it to be dismissed. They're not saying we don't believe that she was assaulted, they're not saying anything like that. We haven't even gotten to that yet. Basically, they're just saying unless you can show it happened the second time, then case closed."

The motion also says that MSU and the MSU board cannot be sued under Section 1983, which is a federal law that can hold someone responsible for violating a known constitutional right. In this case, the case law says that an entity like MSU cannot be found responsible.

Truszkowski said that the next step in the case is for her to respond and that the court may ask for them to come in and give an oral argument, however she wouldn't be surprised if they did not do that. Instead, it is likely the judge will make a ruling based upon the pleadings.

Michigan State Communications Deputy Spokesperson Dan Olsen said in an email that he was unable to comment on pending litigation.

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