The Volokh Conspiracy

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Wrongly Ejecting Teenager from Sports Club for Sexual Misconduct May Be Intentional Infliction of Emotional Distress,

if it's done without adequate investigation, and as a means of retaliating against the teenager's parent.


From Burke v. Robinson, decided Tuesday by the California Court of Appeal (Justice Thomas Goethals, joined by Justices William Bedsworth & Raymond Ikola) (nonprecedential); note that there's no indication that the son sued for defamation, which is the cause of action one might have anticipated here:

Gregory Burke [sued] defendants Newport Beach Aquatics, Inc., a swim club affiliated with his son Griffin's public high school (the Club), and five current or former members of the Club's board of directors, Thomas N. Robinson, Dean Crow, James Fowler, John Dobrott and Park Eddy (the Board) … for intentional infliction of emotional distress. Burke's claim arose out of defendants' decision to terminate his son Griffin's membership in the Club based on a finding of sexual misconduct, without undertaking any investigation of the issue or complying with the Club's own due process requirements. Burke alleges the Club and its directors did so in bad faith, for the purpose of silencing his own complaints about the Club's coach and other swimmers….

Burke's claim is not based on defendants' dismissal of his teenaged son from the swim club—which he agreed in his briefing and during oral argument would not qualify as outrageous conduct standing alone. Instead, Burke's claim is that these school-affiliated Club officials improperly used relatively benign accusations against Griffin as a pretext to support a finding that he had engaged in "sexual harassment" or "sexual abuse" sufficient to terminate his club membership—and that they did so in an effort to silence Burke's own complaints relating to the Club and its coach.

Thus, it is not just the Board's willingness to believe the complaints made against Griffin without any investigation, but also its finding that the misconduct involved sexual misconduct that lies at the heart of Burke's complaint. The Board's failure to acknowledge, let alone explain, its actions supports an inference that the Board acted recklessly and in bad faith. That precludes summary judgment in the Board's favor…. [And i]f, lacking any reasonable basis, the defendants labeled Burke's teenaged son a sexual miscreant in order to curtail Burke's bothersome advocacy related to the Club, such conduct could be sufficient to meet the reckless disregard standard [required for the emotional distress tort]….

In his … complaint, Burke alleged that his son, Griffin, who swam for Newport Harbor High School, and also for the related Club team, was subjected to harassment by … Basil, the head coach of both swim teams, in early 2014. Burke complained to Basil about his misconduct, and the coach allegedly responded by intensifying his harassment of Burke's son.

Specifically, Burke alleged that in the summer of 2014, Basil engaged in an effort to pressure and intimidate Burke's son—then a 15-year-old high school sophomore—to end his relationship with a female swimmer on the team, apparently at the behest of her mother. In July 2014, Burke complained to board member Fowler that Basil was harassing and mistreating Griffin and improperly involving himself in what Burke believed was a "parenting issue."

Although the problem appeared to temporarily abate when the relationship between Griffin and the female swimmer ended, tensions flared again at the beginning of November 2014. On November 14, Burke sent an e-mail to Basil complaining that the female swimmer with whom Griffin had been involved was "currently harassing" him.

In his e-mail, Burke reminded Basil that the problem stemmed from the situation that arose during the summer when the swimmer's mother had enlisted Basil's help to break up the relationship between the two swimmers. Burke claimed that since Griffin and the female swimmer had ended their relationship, she had been harassing Griffin, she was "actively trying to turn the other female swimmers against Griffin," and she had recently expressed a desire to get him "kicked off" the swim team. Burke requested that the matter be addressed internally in accordance with the Club's code of conduct.

Rather than initiating such an investigation, the Club terminated Griffin's membership that same day, claiming he had violated specific USA Swimming Code of Conduct rules as the basis for its decision. The cited rules related to sexual misconduct.

In his complaint, Burke alleged that the defendants "falsely accuse[d his] son of sexual misconduct to silence [Burke's] complaints and avoid an investigation by the high school into the conduct of Coach Basil." He further alleged that defendants allegedly "intended to harm [him] with the false accusation, confident that by maligning his son [he] would be so mentally and emotionally shattered that he would simply walk away and stop his complaints."

Burke also alleged he then "looked further into why the Defendants would make such a patently false accusation, and, in his investigation, discovered that [the swim coach] had been sending lewd and inappropriate text messages [to] some of the male swimmers …." He further alleged that as a consequence of that revelation, Basil was forced to resign as Club coach and the swim club was "completely dissolved." …

In support of their motion [for summary judgment], the Club and the Board submitted declarations of the board members which explained the circumstances leading up to the termination of Griffin's membership in the Club.

According to the declaration of board member Crow, Basil informed him on or about November 1, 2014, that a female swimmer had complained to Basil via text that '"Griffin is out of control and I can't do anything and neither can anyone else,"' and that he is '"laying on me and other people had to get him off of me … [a]nd he can't keep his hands to himself."' Crow stated that, three days later, Basil also informed him he had received a letter from the father of that female swimmer, relating that Griffin had subjected her to inappropriate conduct during a swim meet on November 1; that conduct included coming up behind her and putting his face close to hers, and then sitting on her lap while she was talking to another male swimmer, despite her protests. The letter additionally complained about another swim meet incident during which Griffin allegedly "again put his hands on [the female swimmer] and shoved her from behind."

On November 13, Crow received an e-mail from the mother of the female swimmer Griffin had previously been involved with. According to Crow, the mother's e-mail "corroborat[ed the other swimmer's and her father's] complaints about Griffin Burke (and as a secondary matter inform[ed] [Crow] that her daughter … received a death threat from Griffin's sister and that the police had become involved)."

A copy of the mother's e-mail was attached as an exhibit to Crow's declaration. The e-mail indicated the alleged death threat was "the reason" she was contacting Crow, and she insisted that she be apprised of "any information that you have now or in the future that has any influence on the safety of my daughter."

The mother's e-mail then referenced "another subject, related to the Burke situation," which she characterized as the "accused sexual harassment of our girls on the team by Griffin …." The swimmer's mother claimed, "the girls … have complained they feel violated by Griffin and feel that nothing has been done to protect them." She asserted "our girls need to be protected from sexual and verbal harassment"; she did not describe any specific incidents of harassment. Contrary to Crow's claim, the mother's e-mail made no reference to claims made by other swimmers or any swimmer's father regarding Griffin's alleged misconduct on and around November 1.

The Club and the Board contend they relied on the mother's letter as the basis for their conclusion that "more than one girl … had been harassed by Griffin." They also contended the one female swimmer's complaint about Griffin's behavior at the November 1 swim meet was "backed up" by the mother's letter.

Crow's declaration states the mother's letter "finalized our business decision to conclude Griffin's membership" in the Club, based on its "'zero tolerance' sexual harassment policy." … Crow also explained that the Club has a "business relationship with Newport Harbor High School," and he therefore believed the high school's principal "would have an interest in protecting the high school's female swimmers from sexual harassment by Griffin." He therefore informed the principal in writing of the Club's decision and its basis.

Crow denied being aware of Burke's November 14 complaint to Basil at the time the board members decided to terminate Griffin's membership in the Club, although he acknowledged, "The Board was, of course, concerned that one of our member's siblings made a death threat against another member and that there was discord between [the female swimmer] and Griffin." As noted in their motion, the Club and board members at that time viewed Burke as both "vocal and litigious."

Crow declared it was only after Griffin's dismissal from the Club that he learned Burke had discovered Basil's inappropriate text messages to male swimmers on November 15; Crow did not deny he was aware of the issue himself. Crow stated Basil resigned as swim coach on November 18, 2014….

None of the board members claims to have investigated either the alleged death threat made by Griffin's sister, or the specifics of the alleged discord between Griffin and the swimmer with whom he was once involved. Likewise, none of the board members claims to have engaged in any investigation of the incidents involving Griffin and the female swimmer on or around November 1. None explains the basis for his conclusion that Griffin's reported misconduct was sexual in nature; nor do they claim to have inquired whether the female swimmer herself viewed it as such. {In a subsequent investigation conducted by the high school, several female swimmers on the high school team (whose identities were not revealed) were interviewed, and all denied feeling uncomfortable with Griffin; none of the swimmers claimed to have been sexually harassed by him.}…

The gravamen of Burke's complaint is not that the board members found Griffin engaged in the conduct described by the female swimmer, or that they dismissed Griffin from the Club; it is that the Board effectively convicted Griffin of sexual misconduct without conducting the hearing its own rules required, and further that they did so for the specific purpose of thwarting Burke's desire to initiate an investigation into the Club's alleged dysfunction….

Because the Club and board members failed to explain in their moving papers why they concluded the single complaint made by a female swimmer amounted to sexual misconduct pursuant to the USA Swimming Code of Conduct, or to demonstrate they had sufficient evidence before them to justify such a finding as a matter of law, they failed to sustain their initial burden of countering Burke's claim that they made such a finding in bad faith. As a result, they failed to meet their initial burden of establishing Burke's inability to prove the outrageous conduct element of the case…

In any event, even if their initial showing were enough to shift the burden, Burke's evidence was sufficient to demonstrate triable issues of fact on the point. Among other things, Burke submitted evidence demonstrating that the Board engaged in no investigation of Griffin's alleged misconduct. The evidence is undisputed the Board, as required by its own rules, failed to seek any first-hand account from the female swimmer of what occurred at the November meet; it also failed to ascertain whether Griffin's conduct was perceived by anyone present at the time to be sexually inappropriate. Lastly, and perhaps most importantly, they failed to speak to Griffin about the accusation….

[T]he Board's failure to engage in any investigation, or to afford Griffin the due process mandated by the Club's own Code of Conduct, was sufficient to [raise a triable issue of fact as to whether] its members were more interested in a rush to judgment than a search for the truth. We agree these circumstances raise a triable issue of fact…. We consequently conclude the Club and its board members were not entitled to summary judgment on the ground that Burke could not establish their conduct was sufficiently outrageous….

[T]he circumstantial evidence is sufficient to support the further inference the Club and the Board made their decision to label Griffin a sex offender as a means of derailing Burke's attempt to initiate any inquiry. Such conduct—accusing Burke's son of sexual misconduct as a way of silencing Burke—would support a finding that defendants acted with reckless disregard to the probability that Burke would suffer emotional distress….