Case 2:08-cv-00030-UA-DNF Document 15 Filed 05/12/08 Page 1 of 24 PageID 57

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Fort Myers Division

JAYE FLOOD

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813 Central Avenue

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Naples, FL 34102,

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HOLLY VAUGHN

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2671 Citrus Lake Drive, #101

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Naples, FL 34102,

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Plaintiffs

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v.

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BOARD OF TRUSTEES OF THE

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FLORIDA GULF COAST UNIVERSITY, )

AND DOES 1 through 13,

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10501 FGCU Boulevard South

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Fort Myers, FL 33965,

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Defendants.

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______________________________________)

CIVIL ACTION NO. 2:08-cv-30-FtM-34-MMH-DNF
FIRST AMENDED COMPLAINT JURY TRIAL DEMAND INJUNCTIVE RELIEF SOUGHT (Retaliation Under Title IX; Defamation)

FIRST AMENDED COMPLAINT COME NOW the Plaintiffs, Jaye Flood and Holly Vaughn, by and through their attorneys, and for their First Amended Complaint in the above-captioned action state to this Honorable Court as follows:
PRELIMINARY STATEMENT 1. Jaye Flood, former Head Volleyball Coach for the women’s volleyball program at Florida Gulf Coast University (“FGCU”), brings this action against FGCU for (a) retaliating against her after she complained about sex discrimination and advocated for gender equity in FGCU’s Athletic Department and (b) defaming her by making false public statements intended to damage

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Coach Flood’s professional reputation. Flood brings this case against FGCU under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”), and the implementing regulations promulgated under Title IX, as well as Florida common law prohibiting defamation. Despite the fact that Coach Flood has the best win-loss record in FGCU’s history and was unanimously named “Coach of the Year” by the Atlantic Sun Conference the 2007-08 academic year, FGCU subjected Flood to a continuing series of retaliatory acts, as a result of her exercising her protected rights to advocate for gender equity in FGCU’s Athletic Department. Among other things, FGCU appraised her performance as “below expectations” despite having no objective basis for doing so, placed her on probation for her job performance, placed her on indefinite administrative leave and removed her from her daily coaching duties and responsibilities, denied her a salary increase or bonus for the 2007-2008 academic year, initiated three separate investigations leading to the unjustified termination of her employment, and made defamatory statements intended to damage her professional reputation.
2. Holly Vaughn, former Head Golf Coach for the women’s golf program at FGCU, brings this action against FGCU for retaliating against her after she complained about sex discrimination and advocated for gender equity in FGCU’s Athletic Department. Vaughn brings this case against FGCU under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”), and the implementing regulations promulgated under Title IX. FGCU subjected Vaughn to a continuing series of retaliatory acts, as a result of her exercising her protected rights to advocate for gender equity in FGCU’s Athletic Department. Among other things, FGCU appraised her performance as “marginally meets expectations” despite having no objective basis for doing so, ignored her concerns, ostracized her, and publicly misrepresented her communication skills, her
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coaching skills and her efforts to promote the women’s golf program. PARTIES
3. Plaintiff Jaye Flood is an adult female resident of the State of Florida. At all times relevant hereto, Plaintiff was an employee of the State of Florida at Florida Gulf Coast University.
4. Plaintiff Holly Vaughn is an adult female resident of the State of Florida. At all times relevant hereto, Plaintiff was an employee of the State of Florida at Florida Gulf Coast University.
5. Defendant Board of Trustees of Florida Gulf Coast University was and is a public entity and the duly empowered governing authority for FGCU. FGCU is a public institution of higher education located in Fort Myers, Florida, and is a recipient of federal funding.
6. Defendants Does 1 through 13 were at all relevant times employees, agents, representatives, and/or members of the Defendant Board of Trustees of FGCU. Flood and Vaughn do not know the true names and capacities of Does 1 through 13 and therefore sue these defendants by fictitious names. Upon information and belief, Does 1 through 13 are residents of the State of Florida.
JURISDICTION 7. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331 and the common law pendent jurisdiction doctrine. 8. Venue is proper as all or most of the acts complained of herein occurred in Lee County, Florida.
FACTS GIVING RISE TO RELIEF Plaintiff Jaye Flood
9. Plaintiff Flood began her employment as FGCU’s Head Volleyball Coach in 2003.
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10. Prior to coming to FGCU, Flood had 22 years of coaching experience. In addition to her experience as a collegiate volleyball coach, Flood is the Founder and Director of the USA South Volleyball Club, an elite volleyball program designed to promote volleyball, sportsmanship and collegiate opportunity among Southwest Florida student-athletes.
11. Coach Flood designed and developed the FGCU volleyball program from its inception. Under Coach Flood’s leadership, in the first three years of the program, FGCU compiled an overall record of 80 wins and 13 losses (.860). This is the best win-loss record of any coach in FGCU’s history. Coach Flood’s team earned a berth in post-season play in each of the first three years of the program, including three appearances in the National Collegiate Athletic Association (NCAA) Division II South Regional tournament and two appearances in the NCAA Division II South Regional Finals. During the 2007 season, the team compiled a record of 23 wins and 3 losses and won the Atlantic Sun Conference title in its first year of Division I play.
12. Coach Flood actively advocated for gender equity within FGCU’s Athletic Department, but FGCU rebuffed her at every turn. Through its Athletic Director, Carl McAloose (“McAloose”), and others, FGCU rejected Coach Flood’s efforts to build and promote the volleyball program at a level equal to men’s athletic programs at FGCU. For example, Coach Flood:
(a) pressed for better marketing of the volleyball program in the community commensurate with the marketing of men’s sports at FGCU;
(b) objected to the pooling of Booster Club donations, instead of allowing volleyball-specific donations to be used for the volleyball team;
(c) complained about a prolonged period when there was no hot water in the volleyball team’s locker room; and
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(d) complained about the fact that male coaches have been granted multi-year contracts while female coaches, including Flood, have been granted only oneyear contracts.
13. In the 2007-2008 academic year, FGCU moved from NCAA Division II to Division I play. The volleyball program was one of only two sports at FGCU (the other was baseball) that were “fast-tracked” for Division I post-season play to begin in the 2009-2010 academic year. Other FGCU sports will not be eligible for Division I post-season play until the 2011-2012 academic year. In 2006 and into early 2007, as part of her effort to ensure that the volleyball program was fully staffed and fully funded to be ready for FGCU’s competition in full Division I play, Coach Flood requested that the volleyball program be provided, among other things:
(a) additional funds to hire a second assistant coach; (b) “guarantee money” to encourage other schools’ teams to come to FGCU for
home matches, which was made available to the men’s athletic programs at FGCU; and (c) a higher salary for her then current assistant coach, so that it would be comparable with similarly situated male assistant coaches at FGCU. 14. Coach Flood’s requests for gender equity in FGCU’s Athletic Department, and for the volleyball program in particular, were rebuffed by Athletic Director McAloose and by Associate Athletic Director and Senior Woman Administrator Kathleen Peterson (“Peterson”). 15. Upon information and belief, soon after Coach Flood had requested additional funds to increase her assistant coach’s salary, McAloose undertook efforts to replace Coach Flood. 16. Because Flood advocated for gender equity within the Athletic Department, and
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specifically for the volleyball program, FGCU retaliated against her by subjecting her to closer scrutiny and treating her less favorably than employees who did not advocate gender equity.
17. For example, among other things, FGCU rated Coach Flood’s performance more harshly than employees who did not advocate gender equity, criticizing her ability to get along with others, characterizing her communication skills as “gruff”, claiming she showed a lack of sensitivity to others’ needs and displayed disruptive or antagonistic behavior, challenging her ethical standards/sportsmanship, and scrutinizing her observance of NCAA rules and adherence to university policies regarding travel authorization requests.
18. Coach Flood encountered such open disrespect from McAloose that her players asked her, “Why doesn’t the Athletic Director like you?”
Plaintiff Holly Vaughn 19. Plaintiff Vaughn began her employment as FGCU’s Head Women’s Golf Coach in 2000. 20. Prior to coming to FGCU, Vaughn was a professional tour player, with experience in both the Futures tour and the LPGA tour. Vaughn was a finalist in the 1994 U.S. Women’s Open. 21. Coach Vaughn designed and developed the FGCU women’s golf program from its inception. Under Coach Vaughn’s direction, in its first four years, the women’s golf program accumulated 11 tournament wins and was ranked as high as third in the nation in Division II, even though FGCU was not eligible for post-season play because of the University’s NCAA probationary status as a new university. 22. When FGCU became eligible for post-season play beginning in 2004, the women’s golf program was represented two out of three years by an FGCU female golfer.
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23. Coach Vaughn advocated for gender equity within FGCU’s Athletic Department, but was bluntly rebuffed by McAloose. For example, Coach Vaughn learned that FGCU had offered male part-time coaches additional job duties to make them full-time employees. When Vaughn asked McAloose why no one had mentioned these types of positions to her, McAloose, although he had never discussed the matter with her, claimed surprise that she would be interested in such a fulltime position.
24. Similarly, and in the same conversation, Coach Vaughn inquired why the female coaches’ offices were located down at the opposite end of the department, while the male coaches’ offices were near the front office. Vaughn also noted that several months into Head Coach Flood’s tenure, Flood still had not been provided with an office, while assistant coaches had offices.
25. In response to Coach Vaughn’s concerns, McAloose rebuffed her, stating, “If you don’t like it here, you can get the hell out.” McAloose’s response left Vaughn feeling intimidated, threatened and vulnerable.
26. Although male head coaches selected their assistant coaches, Vaughn was not permitted to select her own assistant coach. Instead, McAloose and Butch Perchan hired J.P. Meyer to assist FGCU’s men’s and women’s golf programs. Coach Vaughn did not have any role in hiring J.P. Meyer as an assistant coach. On more than one occasion, when Vaughn told McAloose that she did not want Meyer as her assistant, he told her, “Just give him things to do.”
27. Among other actions, in June 2006, when three male coaches were hired into the Athletic Department, McAloose directed Vaughn to move her office out of Alico Arena and into an outdoor trailer. Vaughn was the only head coach relegated to the trailer, and was forced to share the trailer with the assistant men’s golf coach, the academic advisor, and the construction crew for the
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soccer fields and field house. Coaches who did not advocate gender equity had clerical support, a printer, and a copier, but Vaughn did not.
28. Except for a single tournament that Coach Vaughn hosted in 2003, FGCU administrators did not attend women’s golf team events or competitions, leaving Vaughn and her female student-athletes unappreciated and undervalued. No FGCU administrator attended the two NCAA regional golf tournaments at which FGCU was represented.
29. Coach Vaughn’s salary was substantially lower than the salaries of other coaches who did not advocate gender equity.
30. Because Vaughn advocated for gender equity within the Athletic Department, and specifically for the women’s golf program, FGCU retaliated against her by subjecting her to closer scrutiny and treating her less favorably than employees who did not advocate gender equity.
31. For example, among other things, FGCU rated Coach Vaughn’s performance more harshly than employees who did not advocate gender equity, criticizing her ability to get along with others, falsely characterizing her communication skills with her co-workers and department staff, falsely characterizing her coaching skills, unjustifiably criticizing her interactions with the public and her efforts to promote the golf program, and falsely accusing her of hiring unqualified staff.
The Baker Letter 32. In May 2007, Coach Flood and Coach Vaughn joined with the other two female coaches then at FGCU to express their concerns about gender equity in FGCU athletics to Merrily Dean Baker (“Baker”), FGCU’s former Interim Athletic Director. On May 24, 2007, Baker, in turn, submitted a letter (the “Baker Letter”) summarizing these concerns to FGCU Interim President Richard Pegnetter.
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33. Among other things, the Baker Letter complained that FGCU’s Athletic Department was violating Title IX by engaging in practices that provide male student-athletes with greater athletic opportunities than female student-athletes, and discriminating against female studentathletes, their coaches and programs. According to the Baker Letter, these discriminatory practices included, among other things, withholding adequate support for female student-athletes and their programs, failing to hire assistant coaches for female athletic programs, failing to provide female coaches with compensation equal to that of comparable male coaches, failing to provide two assistant coaches for each female program as was done for the male programs, and limiting female coaches to one-year contracts while providing multi-year contracts for male coaches.
34. After receiving the Baker Letter, President Pegnetter sent an e-mail dated June 8, 2007, to the entire FGCU faculty and staff, and to student government leaders, informing them that allegations had been made about Title IX and other issues in the Athletic Department and that an internal audit would be conducted into the matter.
35. President Pegnetter’s June 8, 2007 e-mail asserted that the Title IX allegations were “unsubstantiated,” although FGCU had not yet compiled facts to support such a statement.
36. On June 8, 2007, Chief of Staff and University Spokesperson Susan Evans sent an e-mail to the entire Athletic Department staff, asserting that “unsubstantiated allegations about Title IX and other issues involving FGCU’s Athletics Department have been made.”
37. The fact that the only four female coaches in FGCU’s Athletic Department had a role in expressing the concerns outlined in the Baker Letter became common knowledge within the Athletic Department.
38. Thereafter, Internal Auditor Carol Slade (“Slade”), together with outside counsel,
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commenced an internal audit of FGCU’s compliance with Title IX, which included interviews with and requests for data from the head coaches of the Athletic Department.
39. After June 8, 2007, FGCU’s retaliation against Coach Flood intensified, and FGCU began to retaliate against Vaughn.
40. Following FGCU’s receipt of the Baker Letter, and despite objective facts to the contrary, Coach Flood’s performance was appraised as “below expectations,” in retaliation for her complaining about gender inequities in FGCU’s Athletic Department. This was the first time in Coach Flood’s tenure at FGCU that her performance had been appraised as “below expectations.”
41. On or about July 8, 2007, Slade issued her report of the internal audit of FGCU’s Title IX compliance. The internal audit and investigation report concluded that FGCU was in compliance with Title IX and met with public skepticism, as reflected by local news media reports.
42. On or about July 11, 2007, FGCU put Coach Flood on probation and placed her on a performance improvement plan during that probationary period. She continued to be the target of closer scrutiny than any coach in the department who did not complain about gender inequity.
43. On or about July 11, 2007, McAloose asked Flood to meet with him to discuss staff salaries, the hiring process, and other issues that were raised in the Baker Letter. In that meeting, when the Athletic Director asked Coach Flood whether she thought she should be paid as much as the (male) baseball coach, she responded, “Why not?” He laughed at her.
44. Following FGCU’s receipt of the Baker Letter, in retaliation for her complaining about gender inequities in FGCU’s Athletic Department, Coach Vaughn’s performance was appraised as “marginally meets expectations,” despite objective facts to the contrary. The only other time that Coach Vaughn’s performance had been appraised during her then seven-year tenure at
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FGCU, her performance was appraised as “outstanding.” 45. FGCU’s appraisal of Coach Vaughn’s performance was not justified because Peterson
had never attended a golf team practice conducted by Coach Vaughn, and had never attended a team tournament or any team meeting. Peterson had never seen Vaughn teach, coach, recruit, or mentor her student-athletes, and had never seen her run a golf tournament or perform any of her other job responsibilities.
46. Peterson refused to discuss the false performance appraisal with Coach Vaughn. 47. When Coach Vaughn asked McAloose to meet with her to discuss the negative performance evaluation ratings she had received related to assistant coach J.P. Meyer, McAloose refused to meet with her. 48. After the Slade internal audit was released, McAloose ignored and ostracized Coach Vaughn, making it difficult for her to fulfill her responsibilities in the Athletic Department. 49. Shortly after the Slade internal audit was released, Women’s Assistant Basketball Coach LeAnn Freeland (“Freeland”) resigned her position. Upon information and belief, Freeland explained that prior to her participation in the discussions that led to the Baker Letter, she had not formally complained to the Athletic Department administration because she “was already familiar with the inequitable reprimands distributed among ‘friends’ and foes of the athletics administration.” 50. Upon information and belief, during Freeland’s tenure at FGCU, among other things, she was regularly addressed by a male coach with terms of disrepect, like “baby” and was shown sexually explicit material by a male coach in the FGCU Athletic Department. 51. McAloose consistently rated coaches who did not complain about gender equity issues as “Outstanding” on their performance appraisals in 2007.
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52. On September 7, 2007, Coach Flood submitted to FGCU an internal Complaint of Inequity/Discrimination, incorporating by reference the Baker Letter. In that Complaint, she alleged that FGCU was discriminating against her based on sex and retaliating against her for complaining about gender inequities in the Athletic Department.
53. Similarly, on or about September 13, 2007, Coach Vaughn filed an internal Complaint of Inequity/Discrimination, incorporating by reference the Baker Letter. In that Complaint, she alleged that FGCU was discriminating against her based on sex and retaliating against her for complaining about gender inequities in the Athletic Department. Vaughn announced her resignation on or about October 1, 2007, at the beginning of the golf season, saying, “I’ve been growing tired of the situation and it was time to make a change.”
54. When Coach Vaughn handed her letter of resignation to McAloose, he said, “Good.” 55. FGCU’s retaliation against Coach Vaughn, resulting from her complaints about Title IX gender equity issues, took many forms, including but not limited to the following:
(a) In 2007, Peterson and McAloose issued a false performance appraisal that rated Coach Vaughn’s performance as “marginally meets expectations,” based on subjective criteria, and cited deficiencies that reflect closer scrutiny than was given to coaches who did not complain about gender inequity. The false performance appraisal also reflects criticisms about Vaughn’s communication skills and other criteria that reflect gender stereotyping on the part of FGCU;
(b) After McAloose learned about the Baker Letter, he called Vaughn into his office for a private meeting, during which he questioned Vaughn about the
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specific issues raised in the Baker Letter and directed an unpleasant barrage at her, saying, “I’ve always trusted you until this point. . . . I’ve always liked you until this point.”; and (c) FGCU released information in Coach Vaughn’s personnel file to the media, including the retaliatory performance appraisal that contained knowingly false and misleading information, in a manner that cast doubt about her reputation for professionalism and competence as a golf coach. 56. FGCU’s retaliation against Coach Flood, resulting from her complaints about Title IX gender equity issues, took many forms, including but not limited to the following: (a) In 2006, Athletic Director McAloose downgraded Flood’s performance appraisal from “outstanding” to “meets expectations,” despite her great success with the volleyball program during the 2005-2006 academic year; (b) FGCU paid Flood a lower salary than male coaches; (c) FGCU failed to grant Flood a multi-year contract, although male coaches were provided with multi-year contracts; (d) FGCU failed to provide clear budget information for the volleyball program, placing Coach Flood in a position to be blamed for exceeding the limits of her budget; (e) In 2007, Peterson and McAloose issued a false performance appraisal that rated Coach Flood’s performance as “below expectations,” based on subjective criteria, and cited deficiencies that reflect closer scrutiny than was given to coaches who did not complain about gender inequity. The false
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performance appraisal also reflects criticisms about her communication skills and other criteria that reflect gender stereotyping on the part of FGCU; (f) The “below expectations” rating rendered Coach Flood ineligible for an annual base salary increase or bonus for the 2007-2008 academic year; (g) FGCU failed to acknowledge Flood’s exemplary job performance, including the great success of her teams and her student-athletes; and (h) In July or August, 2007, Peterson waved Flood’s personnel file in front of a reporter, disclosing among other things, that she had “a year’s worth of information” that allegedly justified the negative performance appraisal. The media then demanded release of the file and FGCU released information in Coach Flood’s personnel file to the media, including the retaliatory performance appraisals that contained knowingly false and misleading information, in a manner that cast doubt about her reputation for professionalism and competence as a volleyball coach. 57. Upon information and belief, Associate Athletic Director Butch Perchan publicly stated to a non-FGCU employee that it was “just a matter of time before they got Jaye Flood” because she did not “play by the rules.” 58. Several weeks after Flood and Vaughn filed their internal complaints of discrimination and retaliation with FGCU, on or about October 1, 2007, FGCU undertook a second Title IX compliance review, conducted by an outside agent, Robert Clayton (“Clayton”) of the law firm of Littler Mendelson. The head coaches in the Athletic Department were requested to provide information as part of that second Title IX compliance review.
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59. The second Title IX compliance review by an outside agent was designed to counter the public criticism that the initial review had received and to generate the appearance of neutrality.
60. On January 22, 2008, FGCU released and published on its website four reports regarding the internal complaints of discrimination and retaliation filed by Coach Flood and Coach Vaughn, and the Baker Letter.
61. President Bradshaw’s Statement accompanying the issuance of the reports announced that the investigators found “NO evidence of disparate treatment of female and male coaches or female and male student-athletes.”
62. A timeline accompanying President Bradshaw’s Statement announced that there was not sufficient FGCU documentation to support the 2006-07 performance evaluations of Coach Flood or Coach Vaughn and that McAloose and Peterson would be reprimanded in writing for negligence in violation of FGCU rules.
63. The events set forth in paragraphs 64 through 83 below constitute further acts of retaliation by FGCU against Coach Flood for complaining about Title IX gender inequities in FGCU’s Athletic Department.
FGCU Launches Three Investigations Against Coach Flood 64. On October 15, 2007, FGCU placed Coach Flood on administrative leave for alleged “issues involving student welfare”—effectively disciplining her—without informing her of the specific nature of the allegations, and before speaking with Coach Flood, the student whose welfare allegedly was at issue, or the assistant volleyball coach to evaluate whether there was any merit to the allegations. Indeed, Coach Flood was not even informed of the nature of the allegations directed against her until October 17, when FGCU told Flood that the allegation was that she had
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inappropriately tugged the shirt of one of her volleyball players during a practice session. 65. FGCU told Coach Flood that, while on administrative leave, she was not allowed to
perform any duties as Head Volleyball Coach, she was not to initiate communications with other Athletic Department employees or with the student-athletes on the volleyball team, and she was not allowed to return to her office.
66. On October 17, 2007, and before he had interviewed Coach Flood about the alleged “shirt-tugging” incident, FGCU’s outside investigator, Clayton, informed Coach Flood that he “kn[e]w the facts [were] not in dispute,” he had proposed a resolution to FGCU, and FGCU had accepted his recommendation. Based on Clayton’s recommendation, FGCU demanded that Coach Flood issue a written apology to the team in order to be reinstated to her duties. Because Coach Flood did not believe her conduct was inappropriate she declined to do so.
67. Upon information and belief, the student involved in the “shirt-tugging” incident reported to Clayton that she did not take offense to the incident.
68. Although FGCU’s investigators never interviewed Coach Flood about the “shirttugging” incident, on or about October 26, 2007, Clayton and FGCU’s General Counsel informed Coach Flood that the investigation into the incident giving rise to the October 15, 2007, notice placing her on administrative leave had been concluded. FGCU failed to provide Coach Flood with any final conclusion or investigative report and has left her status uncertain through the conclusion of the volleyball season, and until January 22, 2008.
69. On or about October 26, 2007, after FGCU told her that the investigation had been concluded, Coach Flood requested that she be returned to her normal duties as Head Volleyball Coach, but FGCU refused to reinstate her.
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70. After the conclusion of the investigation of the “student welfare issues” that gave rise to FGCU placing Coach Flood on administrative leave, in further retaliation, FGCU and Clayton continued to engage in a series of “investigations” designed to discredit Coach Flood and justify FGCU’s retaliatory decision to place her on administrative leave, and to manufacture grounds for her removal.
71. Upon information and belief, throughout each investigation, Clayton rejected the responses of persons interviewed during the course of his investigations, put words in their mouths, and lectured and argued with them over their accounts of events.
72. In further retaliation for complaining about Title IX gender inequities, after placing Coach Flood on administrative leave, FGCU’s agents initiated an investigation of Coach Flood for potential violations of FGCU rules and policies, including the Florida Administrative Code. However, FGCU failed to inform Coach Flood of the specific facts underlying the allegations that were under investigation, including what actions she allegedly took and when.
73. In further retaliation against Coach Flood for advocating gender equity in FGCU’s Athletic Department, when the Atlantic Sun Conference announced on November 14, 2007, that Flood had been unanimously elected Coach of the Year, FGCU directed its sports information officer not to recognize Coach Flood’s accomplishment and not to include her in a press release issued by FGCU. The same evening, Athletic Director McAloose prohibited Coach Flood from participating with her team in a mid-court program honoring the team.
74. On or about November 26, 2007, Clayton informed Coach Flood that FGCU had already decided that it would not renew her contract when it expires in 2008, even though he had not even interviewed Coach Flood about these allegations and had not completed the investigation into
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her alleged violations of FGCU’s rules and policies. 75. In light of Clayton’s statement that Coach Flood’s contract would not be renewed,
it was apparent that the investigation of allegations against Coach Flood was not in good faith and was not a neutral inquiry.
76. Upon information and belief, before January 18, 2008, FGCU had begun speaking to a male volleyball coach about replacing Coach Flood as the Head Volleyball Coach at FGCU.
77. Upon information and belief, Clayton’s investigation was still ongoing as of January 18, 2008.
78. On January 18, 2008, Coach Flood filed the original Complaint in this matter. 79. On January 22, 2008, FGCU President Wilson G. Bradshaw announced that Coach Flood was being given notice of termination from her position as Head Coach for the FGCU women’s volleyball program. 80. With his announcement, President Bradshaw issued three “investigative reports” to the entire FGCU community and to the media, entitled “Report on Jaye Flood Investigation #1,” “Report on Jaye Flood Investigation #2,” and “Report on Jaye Flood Investigation #3” (the “Reports”). The Reports were dated January 18, 2008. 81. President Bradshaw’s Statement accompanying the issuance of the Reports included a link to the FGCU website, http://www.fgcu.edu/investigations, where all of the Reports were published for the world to review or download electronically. 82. Following five months and three investigations initiated by FGCU, President Bradshaw granted Coach Flood a one hour conference, at which Coach Flood was allowed to respond to the “investigative reports” and notice of termination.
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83. Although the “investigative reports” did not justify the action, on March 7, 2008, FGCU gave Coach Flood final notice that her employment would be terminated effective March 14, 2008.
84. Coach Flood is the Founder and Director of the USA South Volleyball Club. USA South is a club that strives to promote volleyball, pride, self-confidence, and sportsmanship to prepare Southwest Florida volleyball athletes to compete for college scholarship opportunities.
85. By 2006, the USA South program enrolled approximately 80 junior volleyball players.
86. In the fall of 2007, after FGCU’s retaliatory actions against Flood, and as a result of FGCU’s public disclosure of incomplete information regarding the inquiries into her gender equity concerns addressed in the Baker Letter and the investigation of alleged “issues involving student welfare,” enrollment in Coach Flood’s USA South Volleyball Club had decreased to approximately 50 players.
87. Coach Flood and the public at large have no adequate remedy at law for many of the harms they and the volleyball program are suffering as a result of FGCU’s retaliation against Flood. Damages for loss of Flood’s professional reputation, and harm to FGCU’s volleyball program while Coach Flood’s status remained in limbo during FGCU’s ongoing investigations, and after her employment was terminated without justification, are difficult if not impossible to ascertain and will continue without this Court’s intervention.
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COUNT I (Plaintiff Flood – Retaliation in Violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and 34 C.F.R. § 100.7) 88. Plaintiff Flood incorporates by reference and re-alleges each of the allegations contained in paragraphs 1-87 of this First Amended Complaint with the same force and vigor as if set out here in full. 89. FGCU gave Flood false “meets expectations” and “below expectations” ratings on her performance appraisals, denied her a base salary increase or bonus, placed her on probation and a performance improvement plan, placed her on indefinite administrative leave, and ultimately terminated her employment because of Coach Flood’s complaints about Title IX gender inequities in FGCU’s Athletic Department. 90. FGCU initiated three investigations of Coach Flood in which FGCU scrutinized her performance more closely than any coaches who had not complained about gender equity issues, and searched for information to discredit Coach Flood and damage her professional reputation. 91. As a direct and proximate result of FGCU’s unlawful acts, Coach Flood suffered and continues to suffer lost earnings and benefits, emotional pain, suffering, professional and personal embarrassment, humiliation, loss of enjoyment of life, and inconvenience.
COUNT II (Plaintiff Flood – Defamation) 92. Plaintiff Flood incorporates by reference and re-alleges each of the allegations contained in paragraphs 1-87 of this First Amended Complaint with the same force and vigor as if set out here in full.
20

Case 2:08-cv-00030-UA-DNF Document 15 Filed 05/12/08 Page 21 of 24 PageID 77
93. FGCU made false public statements regarding Coach Flood’s performance as head coach, including falsely calling into question her communication skills and behavior toward others, her sensitivity to others’ needs, her ethical standards/sportsmanship, her observance of NCAA rules and adherence to university policies regarding travel authorization requests. FGCU personnel knew the statements to be false when they made them and made these false statements in bad faith, with malice toward Coach Flood, and with an intention to cast her in a false light.
94. Specifically, Peterson invited publication of the false information in the performance appraisal by waving Flood’s personnel file in front of a reporter, disclosing among other things, that she had “a year’s worth of information” that allegedly justified the negative performance appraisal, intending to expose Flood to ridicule and to damage her professional reputation.
95. Additionally, FGCU issued “investigative reports” containing gossip and innuendo that intentionally characterized Coach Flood in a false light and did not justify the termination of her employment.
96. As a direct and proximate result of FGCU’s unlawful acts, Coach Flood suffered and continues to suffer lost earnings and benefits, emotional pain, suffering, professional and personal embarrassment, humiliation, loss of enjoyment of life, and inconvenience.
COUNT III (Plaintiff Vaughn – Retaliation in Violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and 34 C.F.R. § 100.7) 97. Plaintiff Vaughn incorporates by reference and re-alleges each of the allegations contained in paragraphs 1-87 of this First Amended Complaint with the same force and vigor as if set out here in full. 98. In July 2007, FGCU gave Vaughn a false “marginally meets expectations” rating on
21

Case 2:08-cv-00030-UA-DNF Document 15 Filed 05/12/08 Page 22 of 24 PageID 78
her performance appraisal because of Coach Vaughn’s complaints about Title IX gender inequities in FGCU’s Athletic Department.
99. Following her participation in the Baker Letter, FGCU scrutinized Coach Vaughn’s employment more closely than any coaches who had not complained about gender equity issues.
100. As a direct and proximate result of FGCU’s unlawful acts, Coach Vaughn suffered and continues to suffer emotional pain, suffering, professional and personal embarrassment, humiliation, loss of enjoyment of life, and inconvenience.
PRAYER FOR RELIEF WHEREFORE, the premises considered, each Plaintiff respectfully prays that this Honorable Court: 1. Enter judgment on behalf of each Plaintiff against Defendant FGCU; 2. Order preliminary and permanent injunctive relief to reinstate Plaintiff Flood into the
position of Head Volleyball Coach with all attendant benefits; 3. Award Plaintiff Flood lost back pay and front pay, and compensatory damages; 4. Award Plaintiff Vaughn compensatory damages; 5. Award each Plaintiff her court costs and expenses, including attorneys’ fees; 6. Award each Plaintiff pre-judgment interest and post-judgment interest; 7. Declare that Defendant’s conduct is in violation of Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681 et seq., and its implementing regulations; and 8. Grant such other relief as this Court deems just and proper.
22

Case 2:08-cv-00030-UA-DNF Document 15 Filed 05/12/08 Page 23 of 24 PageID 79
Respectfully submitted,
PUBLIC JUSTICE, P.C. AND ITS COOPERATING COUNSEL
By: s/ Heather M. Collins Heather M. Collins
Linda M. Correia, D.C. Bar # 435027 (admitted pro hac vice) WEBSTER, FREDRICKSON, HENRICHSEN CORREIA & PUTH, PLLC 1775 K Street, Suite 600 Washington, D.C. 20006 Tel: (202) 659-8510 Fax: (202) 659-4082 e-mail: lcorreia@wfhcplaw.com
Heather M. Collins, FL Bar # 0546518 WEBSTER, FREDRICKSON, HENRICHSEN CORREIA & PUTH, PLLC 1648 Osceola Street Jacksonville, FL 32204 Tel: (904) 381-8183 Fax: (904) 381-8191 e-mail: hcollins@wfhcplaw.com
and
Adele P. Kimmel, D.C. Bar # 412612 Amy Radon, Admitted to New York Bar (both admitted pro hac vice) PUBLIC JUSTICE, P.C. 1825 K Street, N.W., Suite 200 Washington, D.C. 20006 Tel: (202) 797-8600 Fax: (202) 232-7203 e-mail: akimmel@publicjustice.net e-mail: aradon@publicjustic.net
Attorneys for Plaintiffs
23

Case 2:08-cv-00030-UA-DNF Document 15 Filed 05/12/08 Page 24 of 24 PageID 80 JURY DEMAND
Plaintiff demands a trial by jury on all issues contained herein. /s Heather M. Collins
Heather M. Collins, FL Bar # 0546518 WEBSTER, FREDRICKSON, HENRICHSEN CORREIA & PUTH, PLLC 1648 Osceola Street Jacksonville, FL 32204 (904) 381-8183 Attorney for Plaintiffs
24

 
 Case: 2:08-cv-00030-UA-DNF As of: 05/07/2011 08:01 AM EDT 1 of 5

U.S. District Court Middle District of Florida (Ft. Myers) CIVIL DOCKET FOR CASE #: 2:08−cv−00030−UA−DNF

CLOSED

Flood v. Board of Trustees of the Florida Gulf Coast University et al Assigned to: Judge Unassigned Judge Referred to: Magistrate Judge Douglas N. Frazier Cause: 28:1331 Fed. Question: Employment Discrimination
Plaintiff

Date Filed: 01/18/2008 Date Terminated: 10/15/2008 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Jaye Flood

represented by Adele P. Kimmel Public Justice, PC 1825 K Street, Suite 200 Washington, DC 20006 202/797−8600 Email: akimmel@publicjustice.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Radon Public Justice, PC 1825 K Street, Suite 200 Washington, DC 20006 202/797−8600 Email: aradon@publicjustice.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Moore Collins Henrichsen &Siegel 1648 Osceola St. Jacksonville, FL 32204−4302 904/381−8183 Fax: 904/381−8191 Email: heather@hmcollinslaw.com TERMINATED: 08/04/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda M. Correia Webster, Fredrickson, Henrichsen, Correia &Puth, PLLC 1775 K Street, Suite 600 Washington, DC 20006 Email: lcorreia@wfcplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason L. Gunter Jason L. Gunter, PA Suite 103 1625 Hendry St Ft Myers, FL 33901 239/334−1600 Fax: 239/334−7979 Email: jason@gunterfirm.com ATTORNEY TO BE NOTICED

Plaintiff Holly Vaughn

represented by Adele P. Kimmel (See above for address)

Case: 2:08-cv-00030-UA-DNF As of: 05/07/2011 08:01 AM EDT 2 of 5
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Radon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Moore Collins (See above for address) TERMINATED: 08/04/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M. Correia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason L. Gunter (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Board of Trustees of the Florida Gulf Coast University
Defendant Jane Doe 1 through 13 Movant Heather Collins

represented by Aaron Behar Aaron Behar, PA Suite 218 2000 Banks Rd Ft Lauderdale, FL 33063 305/416−3180 Fax: 305/416−3190 Email: ab@aaronbeharpa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Heather Moore Collins (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/18/2008
01/22/2008 01/24/2008
01/24/2008

# Docket Text
1 COMPLAINT against Board of Trustees of the Florida Gulf Coast University, John Doe ; jury demand (Filing fee $ 350 receipt number F10408) filed by Jaye Flood.(kma) (Entered: 01/22/2008)
2 STANDING ORDER: Filing of documents that exceed twenty−five pages. Signed by All Divisional Judges on 03/27/07. (kma) (Entered: 01/22/2008)
3 ORDER directing counsel Linda M. Correia to be admitted and thereafter to comply with electronic filing. See order for details. Signed by Magistrate Judge Douglas N. Frazier on 1/24/2008. (JS) (Entered: 01/24/2008)
4 ORDER directing counsel Amy Raydon to be admitted and thereafter to comply with electronic filing. See order for details. Signed by Magistrate Judge Douglas N. Frazier on 1/24/2008. (JS) (Entered: 01/24/2008)

Case: 2:08-cv-00030-UA-DNF As of: 05/07/2011 08:01 AM EDT 3 of 5

01/24/2008 01/28/2008 01/28/2008 01/28/2008 01/28/2008 01/29/2008 01/29/2008 01/30/2008 01/30/2008 01/31/2008 05/12/2008 05/29/2008 06/09/2008
06/12/2008
06/13/2008
06/13/2008
06/13/2008

5 ORDER directing counsel Adele P. Kimmel to be admitted and thereafter to comply with electronic filing. See order for details. Signed by Magistrate Judge Douglas N. Frazier on 1/24/2008. (JS) (Entered: 01/24/2008)
6 INTERESTED PERSONS ORDER. Certificate of interested persons and corporate disclosure statement due by 2/8/2008. Signed by All Divisional Judges on 1/28/2008. (BJH) (Entered: 01/28/2008)
7 RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 − track 2. Notice of pendency of other actions due by 2/8/2008. Signed by All Divisional Judges on 1/28/2008. (BJH) (Entered: 01/28/2008)
8 MOTION for Linda M. Correia to appear pro hac vice by Jaye Flood. (Collins, Heather) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 01/28/2008)
9 MOTION for Adele Kimmel and Amy Radon to appear pro hac vice by Jaye Flood. (Collins, Heather) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 01/28/2008)
10 CERTIFICATE of interested persons and corporate disclosure statement re 6 Interested persons order by Jaye Flood. (Collins, Heather) (Entered: 01/29/2008)
11 NOTICE of pendency of related cases re order of compliance to Local Rule by Jaye Flood. Related case(s): no (Collins, Heather) (Entered: 01/29/2008)
12 ORDER granting 8 motion to appear pro hac vice, Linda M. Correia, Esquire. See Order for details. Signed by Magistrate Judge Douglas N. Frazier on 1/30/2008. (BAS) (Entered: 01/30/2008)
13 ORDER granting 9 motion to appear pro hac vice, Adele Kimmel, Esquire and Amy N. Radon, Esquire. See Order for details. Signed by Magistrate Judge Douglas N. Frazier on 1/30/2008. (BAS) (Entered: 01/30/2008)
14 Remark: No further action will be taken re 3 , 4 , 5 as counsel have complied. (LAG) (Entered: 01/31/2008)
15 AMENDED COMPLAINT against all defendants with Jury Demand filed by all plaintiffs.(Collins, Heather) (Entered: 05/12/2008)
16 NOTICE of Appearance by Aaron Behar on behalf of Board of Trustees of the Florida Gulf Coast University (Behar, Aaron) (Entered: 05/29/2008)
17 STIPULATION AND AGREED ORDER BETWEEN PLAINTIFFS AND DEFENDANT FOR ENLARGEMENT OF TIME TO RESPOND TO PLAINTIFFS' AMENDED COMPLAINT by Board of Trustees of the Florida Gulf Coast University. (Behar, Aaron) (Entered: 06/09/2008)
18 ORDER denying 17 Stipulated and Agreed Order Between Plaintiffs and Defendant for Enlargement of Time to Respond to Plaintiffs' Amended Complaint. See Order for details. Signed by Magistrate Judge Douglas N. Frazier on 6/12/2008. (brh) (Entered: 06/12/2008)
19 AMENDED DOCUMENT by Board of Trustees of the Florida Gulf Coast University. Joint Stipulation between Plaintiffs and Defendant for Enlargement of Time to respond to Plaintiffs' Amended Complaint. (Behar, Aaron) (Entered: 06/13/2008)
20 STIPULATION Second Amended between Plaintiffs and Defendant for Enlargement of Time to respond to Plaintiffs' Amended Complaint by Board of Trustees of the Florida Gulf Coast University. (Behar, Aaron) (Entered: 06/13/2008)
21 ORDER denying 20 Second Amended Stipulation Between Plaintiffs and Defendant for Enlargement of Time to Respond to Plaintiffs' Amended Complaint; and denying 19 Amended Joint Stipulation Between Plaintiffs and Defendant for Enlargement of Time to Respond to Plaintiffs' Amended Complaint. See Order for details. Signed by Magistrate Judge Douglas N. Frazier on 6/13/2008. (brh) (Entered: 06/13/2008)

Case: 2:08-cv-00030-UA-DNF As of: 05/07/2011 08:01 AM EDT 4 of 5

06/16/2008
06/23/2008
07/03/2008 07/03/2008 07/07/2008
07/11/2008 07/11/2008
07/16/2008 07/21/2008 07/28/2008 07/30/2008 08/04/2008
08/04/2008 08/04/2008 08/11/2008
08/25/2008

22 Unopposed MOTION for extension of time to file answer or otherwise plead to Plaintiff Amended Complaint by Board of Trustees of the Florida Gulf Coast University. (Behar, Aaron) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 06/16/2008)
23 ENDORSED ORDER granting 22 Unopposed Motion for extension of time to answer or respond. Board of Trustees of the Florida Gulf Coast University answer due 7/11/2008. Signed by Magistrate Judge Douglas N. Frazier on 6/23/2008. (BAS) (Entered: 06/23/2008)
24 NOTICE of Appearance by Jason L. Gunter on behalf of Jaye Flood, Holly Vaughn (Gunter, Jason) (Entered: 07/03/2008)
25 Written designation and consent to act by Jason L. Gunter on behalf of Jaye Flood, Holly Vaughn. Local Counsel: Jason L. Gunter. Non−Resident Counsel: Linda M. Correia, Adele P. Kimmel, Amy Radon. (Gunter, Jason) (Entered: 07/03/2008)
26 ENDORSED ORDER re: 25 Notice of Substituted Designation of Middle District Counsel Jason L. Gunter and Consent to Act on behalf of the Plaintiffs'. The Clerk is directed to amend the service list. Signed by Magistrate Judge Douglas N. Frazier on 7/7/2008. (BAS) (Entered: 07/07/2008)
27 Defendant's ANSWER and affirmative defenses to 15 Amended complaint by Board of Trustees of the Florida Gulf Coast University.(Behar, Aaron) (Entered: 07/11/2008)
28 Joint MOTION to Appear Telephonically for Case Management Meeting by Jaye Flood, Board of Trustees of the Florida Gulf Coast University, Holly Vaughn. (Gunter, Jason) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 07/11/2008)
29 ENDORSED ORDER granting 28 Joint Motion Requesting Court Permission to Conduct Case Management Conference by Telephone. Signed by Magistrate Judge Douglas N. Frazier on 7/16/2008. (BAS) (Entered: 07/16/2008)
30 CERTIFICATE of interested persons and corporate disclosure statement re 6 Interested persons order for civil cases by Board of Trustees of the Florida Gulf Coast University. (Behar, Aaron) (Entered: 07/21/2008)
31 CASE MANAGEMENT REPORT. (Gunter, Jason) (Entered: 07/28/2008)
32 MOTION for Heather M. Collins to withdraw as attorney by Heather Collins. (Collins, Heather) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 07/30/2008)
33 ENDORSED ORDER granting 32 Attorney Heather M. Collins Motion to withdraw as attorney for Plaintiffs. The Clerk is direct to amend the service list and all other counsel for Plaintiffs remain the same. Signed by Magistrate Judge Douglas N. Frazier on 8/4/2008. (BAS) (Entered: 08/04/2008)
34 NOTICE of mediation to be held on 9/3/2008; 9:30 am before David Prolman. (Gunter, Jason) (Entered: 08/04/2008)
35 Case Reassigned to Unassigned Judge. New case number: 2:08−cv−30−FtM−99DNF. Judge Marcia Morales Howard no longer assigned to the case. (LAF) (Entered: 08/05/2008)
36 CASE MANAGEMENT AND SCHEDULING ORDER: Final Pretrial Conference set for 7/20/2009 at 09:00 AM before Judge Unassigned Judge, Jury Trial set for trial term 8/3/2009 at 09:00 AM before Judge Unassigned Judge. See Order for all deadlines. Signed by Magistrate Judge Douglas N. Frazier on 8/11/2008. (BJH) (Entered: 08/11/2008)
37 NOTICE by Board of Trustees of the Florida Gulf Coast University of Initial Disclosures, Pursuant to Rule 26(a)(1), Federal Rules of Civil Procedure (Behar, Aaron) Document Stricken per Order Doc. 39 Modified on 9/2/2008 (JS). (Entered: 08/25/2008)

Case: 2:08-cv-00030-UA-DNF As of: 05/07/2011 08:01 AM EDT 5 of 5

08/25/2008 08/29/2008
09/02/2008 09/05/2008 09/05/2008 09/17/2008 09/23/2008 09/24/2008
10/10/2008 10/14/2008 10/15/2008 10/15/2008
11/12/2008

38 Unopposed MOTION to Strike and Remove Docket Entry Number 37 as Inadvertently Filed by Board of Trustees of the Florida Gulf Coast University. (Behar, Aaron) (Entered: 08/25/2008)
39 ORDER granting 38 Defendant's Unopposed Motion to Strike and Remove Docket Entry Number 37 as Inadvertently Filed. The Office of the Clerk is directed to Strike Docket Entry Number 37 and return said document. See Order for details. Signed by Magistrate Judge Douglas N. Frazier on 8/29/2008.(BAS) (Entered: 08/29/2008)
40 MOTION For Enlargement of Time to respond to Plaintiffs' First Request for Production and Interrogatories by Board of Trustees of the Florida Gulf Coast University. (Behar, Aaron) (Entered: 09/02/2008)
41 ENDORSED ORDER granting 40 Defendant's Motion for Enlargement of Time to Respond to Plaintiffs' First Request for Production and Interrogatories up to and including September 22, 2008. Signed by Magistrate Judge Douglas N. Frazier on 9/5/2008. (BAS) (Entered: 09/05/2008)
42 NOTICE of withdrawal of motion by Board of Trustees of the Florida Gulf Coast University of Enlargement of Time to Respond to Plaintiff's First Request for Production and Interrogatories (Behar, Aaron) (Entered: 09/05/2008)
43 ORDER directing Jaye Flood, Board of Trustees of the Florida Gulf Coast University, John Doe, Holly Vaughn to advise the Court as to the status of mediation. Signed by Judge John E. Steele on 9/17/2008. (RKM) (Entered: 09/17/2008)
44 NOTICE by Jaye Flood, Board of Trustees of the Florida Gulf Coast University, Holly Vaughn re 43 Order directing parties to advise status of Mediation (Gunter, Jason) (Entered: 09/23/2008)
45 ORDER granting request for additional time to respond regarding mediation contained in the 44 Joint Notice filed by Board of Trustees of the Florida Gulf Coast University, Jaye Flood, Holly Vaughn and the parties shall respond on or before October 10, 2008. Signed by Judge John E. Steele on 9/24/2008. (RKM) (Entered: 09/24/2008)
46 Joint MOTION to extend time to Report to Court Regarding Status of Mediation by Jaye Flood, Board of Trustees of the Florida Gulf Coast University, Holly Vaughn. (Gunter, Jason) (Entered: 10/10/2008)
47 ENDORSED ORDER granting 46 Joint Motion to Extend Time to Report to Court Regarding Status of Mediation. The parties shall have until October 17, 2008, in which to respond to the Court's Order regarding mediation. Signed by Magistrate Judge Douglas N. Frazier on 10/14/2008. (brh) (Entered: 10/14/2008)
48 STIPULATION of Dismissal Filed Jointly by Jaye Flood, Board of Trustees of the Florida Gulf Coast University, Holly Vaughn. (Gunter, Jason) (Entered: 10/15/2008)
49 ENDORSED ORDER that upon due consideration of 48 the parties' Joint Stipulation for Dismissal With Prejudice, this case is dismissed with prejudice, with each party to bear its own costs and attorneys' fees incurred in connection with this action. The Clerk is directed to terminate any pending motions and deadlines and to close this case. Signed by District Judge Richard A. Lazzara on 10/15/2008. (DMB) (Entered: 10/15/2008)
50 MEDIATION REPORT Hearing held on 9/3/08 Hearing outcome: completely resolved(SLU) (Entered: 11/12/2008)

 
 SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (this "Agreement") is made this 10th day of October 2008, by and between Jaye Flood and Holly Vaughn ("Plaintiffs") and the Board of Trustees of Florida Gulf Coast University and Does 1 through 13 (the members of the Board of Trustees in their individual capacities) (collectively, "FGCU" or "Defendants").
WHEREAS, on May 12,2008, the Plaintiffs filed their First Amended Complaint in the United States District Court for the Middle District of Florida, Flood and Vaughn v. Board of Trustees ofthe Florida Gulf Coast University and Does 1 through 13, 2:08-cv-30-FtM-34;
WHEREAS, the Plaintiffs and FGCU desire to fully resolve and settle the First Amended Complaint and any other claims between the parties on the terms set forth herein; and
WHEREAS, the Plaintiffs and FGCU have negotiated and reached this Agreement in good faith.
NOW, THEREFORE, it is hereby agreed as follows by the Plaintiffs and FGCU (collectively, the "Parties"), in consideration ofthe mutual releases and other terms set forth herein, and the payment of certain sums provided herein by FGCU to the Plaintiffs, which the Parties agree is good and valuable consideration for the various covenants and understandings set forth in this Agreement:
1. Settlement Payment: FGCU shall pay the total sum ofThree Million Four Hundred Thousand Dollars ($3,400,000.00) (the "Payment") in full satisfaction of the First Amended Complaint and any claims between the parties. The Payment shall be made as follows:
(a) First Installment: The first installment in the amount of $2,400,000.00 (Two Million Four Hundred Thousand Dollars) shall be paid no later than October 3,2008, provided that the essential documents to request a check are received by Risk Management. The first installment shall be made and allocated as follows:
(i) $1,965,000.00 (One Million Nine Hundred Sixty-Five Thousand Dollars) shall be made payable to Webster, Fredrickson, Correia & Puth ("WFCP") in trust for Jaye Flood. Defendants shall issue an IRS Form 1099 to Flood, reflecting the payment of "other income" for this amount. Defendants also shall issue an IRS Form 1099 to WFCP, reflecting the payment of "other income" for the amount paid to Flood.
(ii) $435,000.00 (Four Hundred Thirty-Five Thousand Dollars) shall be made payable to WFCP in trust for Holly Vaughn. Defendants shall issue an IRS Form 1099 to Vaughn for this amount, reflecting the payment of "other income" for this amount. Defendants also shall issue an IRS Form 1099 to WFCP, reflecting the payment of "other income" for the amount paid to Vaughn.
FLOODIVAUGHN v. FGCU Settlement Agreement

(iii) The payments set forth in paragraphs (i) and (ii) above shall be made in immediately available funds and delivered by overnight delivery to Linda M. Correia, counsel for the Plaintiffs, at Webster, Fredrickson, Correia & Puth, PLLC, 1775 K Street, N.W., Suite 600, Washington, D.C. 20006.
(b) Second Installment: The second installment shall be paid no later than October 1, 2009. The second installment, in the amount of$I,OOO,OOO.OO (One Million Dollars) shall be paid as follows:
(i) $480,000.00 (Four Hundred Eighty Thousand Dollars) shall be made payable to WFCP in trust for Jaye Flood. Defendants shall issue an IRS Form 1099 to Flood, reflecting the payment of "other income" for this amount. Defendants also shall issue an IRS Form 1099 to WFCP, reflecting the payment of"other income" for the amount paid to Flood.
(ii) $20,000.00 (Twenty Thousand Dollars) shall be made payable directly to Jaye Flood, less applicable withholding and payroll taxes. The Parties agree, based on record evidence, that $20,000.00 represents an appropriate compromise ofcompensation in lieu oflost wages for the period March 14 to September 3, 2008, and Defendants will issue a W -2 for the gross amount of $20,000.00, less applicable withholdings.
(iii) The payments set forth in paragraphs (i) and (ii) above shall be made in immediately available funds and delivered by overnight delivery to Linda M. Correia, counsel for the Plaintiffs, at Webster, Fredrickson, Correia & Puth, PLLC, 1775 K Street, N.W., Suite 600, Washington, D.C. 20006.
(iv) $500,000.00 (Five Hundred Thousand Dollars) shall be made payable to Allstate International Assignments, Ltd. ("ALA"), through JMW Settlements, Inc. fuo Jaye Flood structured settlement, 1828 L Street, N.W. Suite 800, Washington, D.C. 20036, to fund Defendants' Periodic Payment obligation set forth below. This reflects an agreement to pay compensation in lieu of damages for loss of career potential and emotional distress. The Parties' understanding is that Plaintiff Flood will receive, through the structured settlement arranged on behalf of FGCU for the benefit of Jaye Flood by JMW Settlements, Inc., Periodic Payments, to Jaye Flood ("Payee") according to the schedule as follows (the "Periodic Payments"):
$4,859.44 per month for the life ofJaye Flood, commencing October 1,2018, with the first 20 years (240 months payments) certain.
(c) Flood's Rights to Payments: Jaye Flood acknowledges that the Periodic Payments cannot be accelerated, deferred, increased or decreased by Flood; nor shall Flood have the power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise.
FLOODIVAUOHN v. FOCU Settlement Agreement
2

(d) Recipient ofAny Guaranteed Payments Remaining After the Death ofFlood: Any payments to be made after the death of any payee pursuant to the terms of this Settlement Agreement shall be made to such person or entity as shall be designated in writing by Flood to Defendants or their assignee, as appropriate. If no person or entity is so designated by Flood, or if the person designated is not living at the time of Flood's death, such payments shall be made to the estate of Jaye Flood. No such designation, nor any revocation thereof, shall be effective unless it is in writing and delivered to the Defendants or their assignee as appropriate. The designation must be in a form acceptable to the Defendants or ALA before such payments are made.
(e) Consent to Non-Qualified Assignment:
(i) Plaintiff Flood acknowledges and agrees that the Defendants shall enter into a Non-Qualified Assignment with Allstate International Assignments Ltd. ("ALA"). ALA's obligation for payment of the Periodic Payments shall be no greater than that of the Defendants (whether by judgment or agreement) immediately preceding the transfer of the Periodic Payments obligation.
(ii) Any such transfer shall be accepted by PlaintiffFlood without right of rejection and shall completely release and discharge the FGCU from the Periodic Payments obligation assigned to ALA. Plaintiff FLood recognizes that, in the event of such an assignment, ALA shall be the sole obligor with respect to the Periodic Payments obligation, and that all other releases with respect to the Periodic Payments obligation that pertain to the liability ofthe Defendants shall thereupon become final, irrevocable and absolute.
(iii) Right to Purchase an Annuity: The Defendants, themselves or through their Assignee reserve the right to fund the liability to make the Periodic Payments through the purchase of an annuity policy from Allstate Life Insurance Company. The Defendants or the Assignee shall be the sole owner of the annuity policy and shall have all rights of ownership. The Defendants or the Assignee may have Allstate Life Insurance Company mail payments directly to PlaintiffFlood. Plaintiff Flood shall be responsible for maintaining a current mailing address with Allstate Life Insurance Company.
(f) Right to Enter Into A Non-Qualified Assignment: The Defendants reserve the right to fund the liability to make the Periodic Payments by entering into a Non-Qualified Assignment with ALA. The Defendants may have ALA remit payments directly to Plaintiff Flood. Plaintiff Flood shall be responsible for maintaining a current mailing address with ALA.
(g) Discharge of Obligation: The obligation of the Defendants and/or ALA with respect to any particular installment ofthe Periodic Payments shall be discharged upon the mailing or other transmission on the due date or earlier of a valid check or its electronic equivalent in the specific amount of such payment to the designated address of Plaintiff Flood.
FLOOONAUGHN v. FGCU Settlement Agreement
3

2. Title IX Compliance Review: FGCU agrees to conduct a Title IX Compliance Review in or before 2009, to be completed by an independent expert mutually agreed upon by the Parties, to assess whether the FGCU athletic program is in compliance with Title IX of the Education Amendments of 1972, as amended (hereinafter "Title IX"). In that regard, Plaintiffs' counsel will provide FGCU's counsel with a list of experts in Title IX Compliance Review from which the Parties shall make their selection. After the Compliance Review is complete, FGCU shall take all steps necessary and appropriate to ensure that its athletic program complies with Title IX. FGCU further agrees to conduct and cooperate fully in annual Title IX compliance monitoring performed by a mutually agreed upon expert to ensure compliance for four years thereafter. Unless exigent circumstances occur that prevent the same expert from completing the annual monitoring, the Parties contemplate that the same expert will complete the Compliance Review and the annual monitoring. The Compliance Review described above shall include review of the specific issues raised in the letter from Merrily Dean Baker to then President Richard Pegnetter, dated May 24, 2007. Defendants agree to make a good faith effort to comply with the expert's recommendations as to the issues raised in the letter.
3. News Embargo: The Parties agree to maintain a news embargo regarding the terms of this Settlement until the Parties reach a finalized agreement with releases, but in any event, no earlier than the joint press conference to be held on October 15,2008.
4. Joint Press Conference: The Parties agree to hold a joint press conference to announce this Settlement to the public.
5. Inquiries About Plaintiffs: Defendants agree (and so they shall instruct their staff) that any inquilY about Jaye Flood or Holly Vaughn to any employee in the Athletic Department shall be directed to the FGCU Office of Human Resources.
6. USA South Volleyball Club: Defendants agree to direct the FGCU volleyball staff to urge the principals of USA South Volleyball Club to refrain from any references to Jaye Flood on their website.
7. No Admissions: By entering into this Settlement Agreement, Defendants do not admit to any wrongdoing. As well, Jaye Flood and Holly Vaughn maintain that Defendants' actions constitute retaliation in violation ofTitle IX ofthe Education Amendments of 1972 and defamation.
8. Mediation Expenses: Defendants have paid for all mediation expenses incurred by the Parties on September 3,2008.
9. Releases by the Plaintiffs: The Plaintiffs hereby release and forever discharge the Defendants (including Defendants' affiliates, direct support organizations, agents, officers, consultants, employees, legal counsel, accountants, financial advisors, and representatives of any kind, and the Board of Trustees and the Trustees in their official capacity and individually), from each and every right, claim, debt, cause of action, demand, suit for damages, liability, legal fee, act or right ofaction ofany nature whatsoever, whether asserted or unasserted, known or unknown, that the Plaintiffs made or could have made against Defendants from the beginning oftime until the date
FLOOONAUGHN v. FGCU Settlement Agreement
4

of this Agreement.
10. Releases by Defendants: The Defendants (including Defendants' affiliates, direct support organizations, agents, officers, consultants, employees, legal counsel, accountants, financial advisors, and representatives ofany kind, and the Board ofTrustees and the Trustees in their official capacity and individually), release and forever discharge Plaintiff Jaye Flood and Plaintiff Holly Vaughn and their respective heirs, administrators, representatives, executors, successors, assigns, and legal counsel from each and every right, claim, debt, cause ofaction, demand, suit for damages, liability, legal fee, act or right of action of any nature whatsoever, whether asserted or unasserted, known or unknown, that the Defendants made or could have made against the Plaintiffs from the beginning of time until the date of this Agreement.
11. Dismissal: Promptly after this Agreement has been executed by the Parties and after receipt by the Plaintiffs of the First Payment, the Parties shall execute and the Plaintiffs shall file a stipulation dismissing the First Amended Complaint with prejudice.
12. Understanding and Counsel: The Parties represent and warrant that (i) they have read and understand the terms ofthis Agreement, (ii) they have been represented by counsel with respect to this Agreement and all matters covered by and relating to it, and (iii) they have entered into this Agreement for reasons of their own and not based upon representations of any other party hereto.
13. Legal Fees and Costs: Each of the Parties shall pay its own respective costs and attorneys' fees incurred with respect to the Litigation and this Agreement.
14. Entire Agreement: This Agreement constitutes the entire agreement with respect to the subject matter addressed herein and supersedes any prior written and/or oral agreements between the Parties.
15. Amendments: This Agreement may not be orally modified. This Agreement may only be modified in a writing signed by all of the Parties.
16. Headings: All headings and captions in this Agreement are for convenience only and shall not be interpreted to enlarge or restrict the provisions of the Agreement.
17. Jurisdiction: By this Agreement, each ofthe Parties submits to the jurisdiction of the United States District Court for the Middle District of Florida for any action to enforce or interpret this Agreement.
18. Countemarts and Facsimile Signatures: This Agreement may be executed in counterparts and all such counterparts when so executed shall together constitute the final Agreement as if one document had been signed by all of the Parties. This Agreement may be executed by facsimile copy and each signature thereto shall be and constitute an original signature, again as if all Parties had executed a single original document.
FLOOONAUGHN v. FGCU Settlement Agreement
5

Oct 11 08 10:35a

Jaye Flood

2392633562

p.1

19. Further Necessary Actions: To the extent that any document is required to be executed by any Party to effectuate the purposes of this Agreement, the Party will execute and deliver such document or documents to the requesting Party.
20. Actions to Enforce: Should any action be brought by one of the Parties to enforce any provision of this Agreement, the non-prevailing party to such action shall reimburse the prevailing party for all reasonable attorneys' fees and courtcosts and other expenses incurred by the prevailing party in said action to enforce. Plaintiffs expressly reserve theirrightto assert any claims for interest for any defaulted payment and for any monetary or non-monetary damages incurred or caused by Defendants' non-compliance with this Settlement Agreement.
IN WITNESS WHEREOF. the Parties hereto have executed this Agreement under seal on the day and year set forth above.

AGREED AND ACCEPTED:

FOR PLAlNTIFFS JAYE FLOOD AND HOLLY VAUGHN:

ez < I By:

~

Date: /0 -(/-o '6

Jaye Flood

By: Holly Vaughn

Date: ---------------

By: Linda M. Correia Webster, Fredrickson, Correia & Puth, PLLC 1775 K Street, N.W., Suite 600 Washington, D.C. 20006

Date: -------------

By: Adele P. Kimmel Amy Radon Public Justice, P .C. 1825 K Street, N.W., Suite 200 Washington, D.C. 20006

Date: ---------------

By: Jason L. Gunter
Jason 1. Gunter, P.A.
1625 Hendry Street. Suite 103 Fort Myers, FL 33901

Date: ------------

FLOODNAUGHN v. FGCU Se1!Icment Agreement
6

19. E1.!J:th(,r.J"'i¢~~J\ss'lr.Y.."Acli.!1:lS: Tn the (lxh,ll! tha: allY dommeTlt i~ requirer! to he executed by any Party to effectuate the purposes of this Agreement, the Party will execute and ddivCi sueh dOCulllcnt 01 documents to tIlt:; n;;qucsting Palty.
20. ~ulu.QJ3n£Qrcc:: Should any netior. be brought by one of the Parties to enforce any ptovis:on of this Agreement, the non-prevailing party to such action shall reimburse the prevailing party for all reasonable attorneys' fees and court costs and othcrcxpcnses incurred by the prevailing panyin sllid action to enforce. Pla:ntHIs expressly reserve theirright to a~sen lIny claims for interest for any defaulted payment and for any mor-etary or non-monetary damages incurred 0, caused by Defendants' non-complianee with this Settlement Agreement.
DJ W1T~ESS WHEREOF, the Particshereto have executed th:s Agreerr.ent undersea! on the day and year set forth above.

AGREED A..~D ACCEPTED: FOR PLA[~TIFFS JAYE FLOOD A~D HOLLY VAUGH~:

By: Jaye flood
By: :::~~ghV~~~~~h~--------

Date: Date: 'b - ( 2. - 2 00 'i3

By: Linda M. Correia Webster, Fredrickson, Corr:~ia & Puth, PLLC
1775 K Street, N.W., Suile 600 Wa~hjngton, D.C. 20C06

Date: ________

By:
Adele P. Kimmel Amy Radon Public Justice, P.c. 1825 K Street, N.\V., Suile 200 Washington, D.C. 20C06

Date:

By: Jason L.
Jason L. Gunter, P.A. 1625 Hendry Street, Suite 103 For: My~s, FL 33901

Date:

FLoon:':AUGHN v. rueL Setticment Agn:cm'2nt
6

19. Further Necessarv Actions: To the extent that any document is required to be executed by any Party to effectuate the purposes of this Agreement, the Party will execute and deliver such document or documents to the requesting Party.
20. Actions to Enforce: Should any action be brought by one of the Parties to enforce any provision of this Agreement, the non-prevailing party to such action shall reimburse the prevailing party for all reasonable attorneys' fees and court costs and other expenses incurred by the prevailing party in said action to enforce. Plaintiffs expressly reserve their right to assert any claims for interest for any defaulted payment and for any monetary or non-monetary damages incurred or caused by Defendants' non-compliance with this Settlement Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement under seal on the day and year set forth above.

AGREED AND ACCEPTED: FOR PLAINTIFFS JAYE FLOOD AND HOLLY VAUGHN:

By: Jaye Flood
By: Holly Vaughn
By:

Date: Date:

"'-.

h6/{) e Date: /'0 r I

By: Adele P. Kimmel Amy Radon Public Justice, P.C. 1825 K Street, N.W., Suite 200 Washington, D.C. 20006
By: Jason L. Gunter Jason L. Gunter, P.A. 1625 Hendry Street, Suite 103 Fort Myers, FL 33901
FLOODIVAUGHN v. FGCU Settlement Agreement
6

Date: Date: - - - - - - - -

19. Further Necessary Actions: To the extent that any document is required to be executed by any Party to effectuate the purposes of this Agreement, the Party will execute and deliver such document or documents to the requesting Party.
20. Actions to Enforce: Should any action be brought by one of the Parties to enforce any provision of this Agreement, the non-prevailing party to such action shall reimburse the prevailing party for all reasonable attorneys' fees and court costs and other expenses incurred by the prevailing party in said action to enforce. Plaintiffs expressly reserve their right to assert any claims for interest for any defaulted payment and for any monetary or non-monetary damages incurred or caused by Defendants' non-compliance with this Settlement Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement under seal on the day and year set forth above.

AGREED AND ACCEPTED: FOR PLAINTIFFS JAYE FLOOD AND HOLLY VAUGHN:

By: Jaye Flood
By: Holly Vaughn

Date: _ _ _ _ _ _ __ Date:

By: Linda M. Correia Webster, Fredrickson, Correia & Puth, PLLC 1775 K Street, N.W., Suite 600 Washington, D.C. 20006
By: Adele P. Kimmel Amy Radon Public Justice, P.C. 1825 K Street, N.W., Suite 200 Washington, D.C. 20006

Date:
1'0 Date: 10 J () !;

By: Jason L. Gunter Jason L. Gunter, P.A. 1625 Hendry Street, Suite 103 Fort Myers, FL 33901

Date:

FLOODNAUGHN Y. FGCU Settlement Agreement
6

!9, Further Necessary Actions: To the extent that any document is required to he executed by any Party to effectuate lhe purposes of this Agreement, thc Party will execute and deliver such document or documents to the requesting Party.
20, Actions to Enforce: Should any adion be brought hy one of tile Parties to cnlorce
any provision of this Agreemcnt, the non-prevailing party to slieh action shall reimburse the prevailing party for all reasonable attorneys' fees Hnd court costs und ollH.:r expenses incum:d by the prevailing party in said action to enJI)fcc. Plnintlfrq expressly reserve their right to assert any claims l'()r interest for allY defaulted payment and tbr any monetary or non-monetary damages incurred or caused by Defendants' non-cornpliance \vitlJ this Settlement AgreemenL
IN WITNESS WHEREOF, the Parlies hereto have exceuted this Agreemclllunder scal on the day and year set forth above.

AGREED ANI) ACCEPTEJ): FOR PLAINTIFFS JAYE FLOOD AND HOLLY VAUGHN:

By:
Jaye
By: Holly Vaughn

Date: Date:

By:
Lillda M. Correia Webster, Fredrickson. Correia & Puth, PLLC 1775 K Street N.W., Suite 600 Washington, D.C. 20006

Dale:

By:

~--"""'--"""-'-"."'--"".
Adele P. Kimmel

Amy Radon

Public Justice, P.c.

1825 K Strec!, N.\V., Suite 200

Washingtoy. D.C. 2000~

. ~ ~i· ~/ L By: Ja.•.sOl.}f i~lntc~·.. -/~'. t/7v/"/"·~I ·-"

Jaso11 L Gunter, P.A.

j

1625 Hendry Street, Suite 10]
PFort Myers, FL 33901

Date:

6

AGREED AND ACCEPTED: FOR DEFENDANTS FLORIDA GULF COAST UNIVERSITY BOARD OF TRUSTEES AND THE TRUSTEES INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY.-

By: Wilson G. Bradshaw, Ph.D., President

Date: ~t

Florida Gulf Coast University
Board o~!:r?y~es
-By: (bz~~/t;;~)~- Date: Aaron Be,har - ,

Lydec\:e/, Lee, Behar, Berga & de Zayas, LLC

1201 Brickell Avenue, Fifth Floor

Miami, FL 33131

FLOOD/VAUGHN v. FGCU Settlement Agreement
8