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Purcell v. Tulane University of Louisiana

United States District Court, E.D. Louisiana

May 25, 2017


         SECTION: “H” (3)



         Before the Court is a Motion to Dismiss filed by Defendants the Administrators of the Tulane Educational Fund (“Tulane”), Curtis Johnson, Doug Lichtenberger, Wayne Cordova, Barbara Burke, Rick Dickson, Ruben Dupree, Wendy Stark, Erica Woodley, Anne Banos, Byron Ellis, Rob Philips, and Adam Hymel (Doc. 112). The Motion has been joined in by Defendants Andrew Dirocco, Trevor Simms, and Michael Lizanich (Docs. 115, 119, and 122). In addition, Defendant Peter Picerelli has filed a Motion to Dismiss the claims against him (Doc. 116). For the following reasons, the initial Motion to Dismiss is GRANTED IN PART, and Picerelli's Motion to Dismiss is GRANTED.


         This lawsuit arises out of the circumstances surrounding Plaintiff Brandon Purcell's departure from the Tulane University football team. Purcell enrolled at Tulane in the fall of 2013 and walked on to the football team as a kicker. He alleges that he suffers from a learning disability necessitating certain academic accommodations, including double time to take tests, a sound-reduced environment, and a note taker. He states that due to his disability, he has better concentration in the morning. Accordingly, Defendant Ruben Dupree, the athletics academic advisor, approved him for 8:00 a.m. classes. This approval represented a departure from the general rule that Tulane football players should not take morning classes in light of their training schedule.

         In the spring of 2015, Purcell was taking 8:00 a.m. classes five days a week. Nevertheless, he was scheduled for a training session from 7:00 a.m. to 8:30 a.m. He states that he would attend the initial portion of the workout, leave for his 8:00 a.m. classes and return to work with his coach after class to complete the missed portion of the workout. On March 4, 2015, Purcell avers that he was called into the office of special teams coach Doug Lichtenberger and was dismissed from the football team. He alleges that Coach Lichtenberger told Purcell that he was a “hindrance” and a “bad example for the team.” Purcell then contacted Athletic Director Rick Dickson and Tulane Head Football Coach Curtis Johnson complaining of discrimination, hostile learning environment, retaliation, and intentional infliction of emotional distress. He alleges that Lichtenberger improperly used Purcell as an example of bad behavior, inciting other members of the football team to harass him and causing emotional distress.

         Later in March of 2015, Brandon Purcell met with Assistant Athletic Director Barbara Burke, who indicated that he had been removed from the team because there were too many kickers. Plaintiffs contend that this reason is pretextual, as they allege that he outperformed other kickers who remained on the team. Plaintiffs later met with Tulane Athletic Director Rick Dickson, demanding an explanation for Purcell's removal from the team. Dickson declined to intervene in the matter. Plaintiffs then met with Head Football Coach Curtis Johnson, Coach Rob Phillips, Coach Byron Ellis, and Coach Wayne Cordova to discuss the matter. Plaintiffs allege that they continued to conspire to assert pretextual reasons for his removal from the team.

         After this meeting, Purcell was allowed to train with the team for the summer to potentially earn a walk-on spot for the following season. He alleges that he suffered increased abuse and retaliation upon returning to train. He also alleges that his former friends and teammates participated in the abuse, making both physical threats and anti-Semitic comments toward Purcell. Purcell then filed a Complaint with Wendy Stark of Tulane's Office of Institutional Equity. Due to the reported increased retaliation, Stark began an independent investigation of the situation. He alleges that Stark failed to maintain confidentiality and participated in the conspiracy and cover up of the disability discrimination, hostile learning environment, retaliation, defamation, and intentional infliction of mental distress.

         In the summer of 2015, Purcell alleges that his former friends and teammates Peter Picerelli, Michael Lizanich, Andrew Dirocco, and Trevor Simms engaged in a pattern of verbal abuse and threats inspired by Coach Lichtenberger. In response to these comments, Purcell met with Associate Athletic Director Sue Bower on August 14, 2015 and relayed his concerns to her. The following day, he alleges that Coach Johnson yelled at him during practice for speaking to Bower.

         Plaintiffs allege that later in August, Purcell sustained a hip injury. He alleges that due to a miscommunication, he missed one of his two assigned treatment sessions for the injury. Despite this injury, he avers that Coach Lichtenberger forced him to remain in a push-up positions as punishment for missing treatment, further aggravating his injury. He alleges that strength coach Adam Hymel also participated in this harassment, calling Purcell a “pussy.” Ultimately, Purcell alleges that he was forced to continue kicking in practice, further aggravating his injury.

         On August 18, 2015, Purcell alleges that he was pulled aside by Lichtenberger, who demanded to know the names of the other players who were engaging in harassment. Though Purcell initially stated that he did not want to name names, he ultimately named Steve Logan, Zachary Block, Peter Picerelli, Michael Lizanich, Andrew Dirocco, and Trevor Simms. He was then directed to Coach Johnson's office. Johnson then called in the above players and admonished them for their conduct directed at Purcell. Purcell avers that this only placed a bigger target on his back. The Tulane University Police Department subsequently investigated several of these students. He avers that the pattern of harassment nevertheless continued unabated, causing Purcell to fear for his life.

         On August 25, 2015, Purcell was called to Coach Johnson's office and was told that he was being removed from the team due to his injury. Purcell avers that this reason is pretextual. In September 2015, Purcell met with Erica Woodley, Wendy Stark, and Vice President of Administrative Affairs Anne Banos. Nothing was done following this meeting. Subsequently, after speaking with Dean of Students James Maclaren, Purcell decided that it was best for his safety that he enroll in study abroad for the Spring 2016 semester.

         As a result of this course of events, Purcell alleges that he has become depressed, missed classes, suffered academically, gained significant weight, sought physiological therapy, and left his family and friends for a study abroad program. He brings claims under the Americans with Disabilities Act, the Rehabilitation Act, and Louisiana state law against Tulane University, Curtis Johnson, Doug Lichtenberger, Byron Ellis, Wayne Cordova, Rob Philips, Barbara Burke, Rick Dickson, Ruben Dupre, Wendy Stark, Erica Woodley, Anne Banos, Andrew Dirocco, Trevor Simms, Michael Lizanich, and Peter Picerelli. His parents, Ralph Purcell and Gail Purcell, also bring claims against these same defendants for loss of consortium.

         On May 17, 2016, the Defendants filed a Motion to Dismiss many of Plaintiffs' claims. This Court granted the motion in part, dismissing some claims with prejudice and others without prejudice, and gave Plaintiffs leave to amend. On December 1, 2016, Plaintiffs amended their complaint, filing a Second Supplemental and Amended Complaint (“Amended Complaint”). The instant Motion to Dismiss resulted. The Court will consider each of Defendants' arguments for dismissal in turn.


         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.”[1] A claim is “plausible on its face” when the pleaded facts allow the court to “[d]raw the reasonable inference that the defendant is liable for the misconduct alleged.”[2] A court must accept the complaint's factual allegations as true and must “draw all reasonable inferences in the plaintiff's favor.”[3] The Court need not, however, accept as true legal conclusions couched as factual allegations.[4]

         To be legally sufficient, a complaint must establish more than a “sheer possibility” that the plaintiff's claims are true.[5] “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'“ will not suffice.[6] Rather, the complaint must contain enough factual allegations to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiffs' claim.[7]


         Defendants have moved to dismiss various claims asserted in Plaintiffs' Amended Complaint. This Court will address each argument in turn.

         I. Claims Dismissed With Prejudice

         First, Defendants complain that Plaintiffs' Amended Complaint attempts to re assert claims that this Court previously dismissed with prejudice. Plaintiffs, however, dispute this and assert that they did not intend to bring claims that had previously been dismissed with prejudice. Therefore, there is no dispute that Plaintiffs' claims under the Americans with Disabilities, the Rehabilitation Act, and Louisiana Revised Statutes § 46:2254 against individual defendants remain dismissed. In addition, Plaintiffs' loss of consortium claims under these laws likewise remain dismissed. Only Plaintiffs' claims against Tulane under these laws survives.

         II. Claims under Louisiana Civil Code article 2315

         Next, Defendants move to dismiss Plaintiffs' state law claims against them. Plaintiffs generally allege that all Defendants are liable under Louisiana Civil Code article 2315 for negligence, defamation, and intentional infliction of emotional distress. Plaintiffs Gail and Ralph Purcell bring related loss of consortium claims. The court will address each of the tort allegations in turn.

         A. Defamation

         Defendants seek dismissal of Plaintiffs' defamation claims. Under Louisiana law,

[f]our elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) [a] resulting injury. The fault requirement is generally referred to in the jurisprudence as malice, actual or implied.[8]

         “[A] statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, [or] deter others from associating or dealing with the person . . . .”[9] “[A]ny communication to a third party, absent a privilege, absolute or qualified, is considered a publication.”[10] “A pure statement of opinion usually is not actionable in defamation because falsity is an indispensable element of any defamation claim, and a purely subjective statement can be neither true nor false.”[11]

         Plaintiffs allege that statements by Coach Lichtenberger, Coach Ellis, Coach Hymel, and his former teammates were defamatory. The ...

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